MONTANA SELF INSURERS' ASSOCIATION

2/26/21 - Legislative Week 8

Committee Transmittal Action
COVID Presumption Bills Fail in Committee (HB 297 & HB 550)
Repeal Choice of Provider Failed in Committee (HB 412)
MSF Bills Fail in Committee (HB 511, 512, 513, 514, SB 322)
Definition of Prosthetics Passes Committee (HB 446)
False Statements Passes Committee & 2nd Reading in House (SB 118)
Anti-Vaccine Discrimination Fails to Pass House (HB 415)

To review prior Legislative Weekly reports, check out the Members Only Section of our website - Montana Self Insurers' Association (mtselfinsurers.org). (Contact me if you forgot your password)

This week saw the State Fund bills, presumptive COVID coverage for front line, first responders and essential workers, the proposal to reverse the current choice of provider law and the prosthetic definition bill heard in Committee. All the MSF bills failed in Committee and were tabled, as were the COVID coverage presumption and the choice of provider bills. The prosthetic definition bill passed Committee and will be heard on the House floor next week. As well, the Senate confirmed the Governor’s final appointment of Curt Laingen of Laingen Trucking in Sheperd to the MSF Board of Directors.

This was the last week for Committee hearings before what is known as Transmittal Day, Wednesday, March 3. That day is the last day for non-revenue bills to pass through their originating chamber. If they fail to pass the originating chamber, they are dead for the session. Unless they wind up being revenue bills – LC proposals that have not been introduced are effectively dead.

Bills have to be heard three times in each chamber. The first hearing is a reading of the bill and assignment to Committee. In our legislative process every bill the sponsor wants to have heard in committee, will get a hearing. The Committee then takes action on the bill. If it passes, it moves to the floor. The second hearing is the first review of the Committee’s action on the bill. The full chamber “hears” the bill and votes on it. Typically, if there are issues beyond those identified in the Committee, they are brought up here. This is also when amendments are considered by the full chamber. If it passes that vote, the third reading is the final action on the bill in its current form by that chamber and is then referred to the other chamber, where it will go through the same process.

The full chambers can amend the rules any time an issue is on the floor and call a failed bill out of committee or to speed up the second and third reading process. While those actions do not happen often, they do happen. There are more nuances to the process, but that is why there were so many bills heard in Committee this week.

All that to say that if a bill did not pass Committee by today, it is most likely dead. However, given the opportunity to amend the rules, nothing is formally and finally dead, until the legislature adjourns, sine die – the last day of session (currently scheduled to be May 1).

Legislative Activity This Week

HB 297 (Caferro D-Helena) – Guaranteed WC coverage for COVID for nurses. Failed in Committee 2/19. The Committee tabled the bill and it is dead.

HB 550 / LC 1350 (A. Olsen D-Missoula) – Presumptive COVID WC coverage for front line, first responders and essential workers. This bill was introduced and heard in House Business and Labor Committee this week. The business and insurance community opposed while the plaintiff attorneys and labor were proponents of the change back to pre-2011 status. MSIA testified in opposition to the bill. The bill failed in Committee 2/26. The Committee Tabled the bill and it is dead.

HB 412 (A. Olsen D-Missoula) – Reverse Choice of Provider in WC. This bill was heard in House Business and Labor Committee this week. Again business and insurers opposed the language. Plaintiff attorneys and labor supported the bill. The MSIA tesitmony pointed out the decrease in length of time for injured workers to be released to return to work since 2011, the more focused medical care and overall system cost decreases as a result since 2011. The bill failed in Committee 2/26. The Committee Tabled the bill and it is dead.

HB 446 (Marshall R-Hamilton) – Define “Prosthetic” and “Prosthesis” in WC Act. MSIA helped shepherd this language which will codify the current case law that a prosthetic is “an artificial substitute for a missing body part.” The bill was heard in House Business and Labor Committee this week. Plaintiff attorney opponents pointed out the definition did not include hearing aids. MSIA members School Boards Group, MMIA and MCCF testified in favor of the bill, as did MSIA, MSF and insurers. MSIA member Midlands Claims Service wrote a letter to the Committee in support of the bill. The bill passed Committee along a largely party-line vote, with Rep Moffie Funk (D-Helena) supporting the bill.

SB 118 (Gauthier R-Helena) –False statements to employers. This is the KRMC bill providing that benefits be eliminated if the injury is the result of false information provided and relied on for hiring regarding disabilities. The bill was heard by the House Business & Labor Committee 2/19 and the Governor’s Office was one of the first proponents to testify on it. The bill passed the Committee on 2/23 and passed second reading today 2/26. It is scheduled for third reading tomorrow, Saturday 2/27. The bill is expected to pass and the Governor is expected to sign it.

MSF Bills: The following five bills were all aimed at the State Fund and how they operate. MSIA did not take a position on any of them, but did provide informational testimony on the first as we felt it would have a de-stabilizing impact on the marketplace, leading to a repeat of the marketplace in the 80’s and early 90’s in Montana. The Commissioner of Securities and Insurance (the insurance regulator), the AFL/CIO (labor), the Montana Chamber of Commerce, the NFIB (small business), the IIA – MT (insurance agents), MT Farm Bureau, MT Stockgrowers Association and other agriculture associations, the MT Loggers Association and MT Wood Products Association, the Motor Carriers of Montana (trucking) association the MT Building Industry Association and other business groups opposed the bills. On some of them, the insurance industry also opposed the language. The bills were supported by Victory Insurance Co, a group called FAIR Montana, an individual small business and a former plaintiff attorney employee were the only supporters. All five failed in Committee today, 2/26 and were Tabled by the Committee and are dead.

HB 511 (Gunderson R-Libby) – This bill would have reduced the Risk Based Capital (RBC) MSF would be required to carry (RBC is one of the regulatory financial measurements to assure the insurance carrier can meet its’ financial obligations), permit MSF rates to only meet the RBC requirement, eliminate the requirement that in cases where costs are less clear that MSF rates be more conservative (higher) than not, require MSF adopt the NCCI loss cost filings and provide a statutorily set expense ratio for the MSF loss cost multiplier at .35%. In testimony as an Informational Witness – neither supporting nor opposing the bill - MSIA testified that it was unusual for an insurance company to operate at the minimum financial security level. Based on NAIC data only 9 of the 2500 licensed P & C carriers in the country did so. About 80% of carriers operate over 500% of their required RBC level, which is where MSF currently is, to assure their stakeholders greater financial security. MSIA’s main concern was that in reducing MSF’s financial security to the regulatory minimum, the bill would have had a de-stabilizing impact on the Montana workers’ compensation marketplace.

HB 512 (Noland R-Bigfork) – This bill language would have prohibited MSF to use rating tiers, schedule rating and set in statute an expense constant for use within the State Fund’s loss cost multiplier calculation used in setting rates. In addition, the language would prohibit any business with an experience modification factor from being part of an MSF Safety Group.

HB 513 (Noland R-Bigfork) – This language would have prohibited MSF from providing dividends and limit executive management compensation to 150% of the Governor’s compensation.

HB 514 (Noland R-Bigfork) – This language would have required MSF to pay the premium tax applicable to all other insurance carriers.

SB 322 (Bogner R-Miles City) – This bill would have required MSF to end its other states’ coverage program for MT based businesses, require them to contract with all insurance producers and to pay commissions based on other states’ residual market levels.

Other Bills of Note

Here is the list of bills I am tracking on our behalf - http://laws.leg.mt.gov/legprd/law_utilities.CallBillSearchResults?P_ENTY_ID_SEQ2=20014&P_PFLT_APPL_SEQ=1&P_SESS=20211. “LC” numbers mean a bill has been requested, but not yet introduced. The Adobe pdf icon indicates there is language available for review by the public. If you click on the underlined bill or LC number you will be able to see amendments or fiscal notes and status of the bill or draft.

Here are some highlights from the list for this week:

HB 415 (J. Carlson R-Manhattan) – this bill would have made it illegal to discriminate in hiring or employment for those who choose not to get vaccinated. MSIA is monitoring the bill and at this time has not taken a position. The bill failed to pass the House on a 50-50 vote on 2/25 and failed on a motion to reconsider 47 – 53 today 2/26. While the bill is currently dead, it may yet come back to life.

SB 367 (Morigeau D-Missoula) – this in an independent contractor bill that prohibits the Department of Labor from determining someone is an employee solely based on the lack of an independent Contractor Exemption Certificate. Only organized labor opposed this bill.

SB 369 (Small R-Busby) – this is the MT Medical Association telemedicine pay parity bill. It has been amended to apply only to behavioral health services. The bill failed and was tabled in Committee today 2/26 and is dead.

HB 283 (F. Anderson R-Great Falls) – this bill has been amended as MSIA, the Montana Contractors Association and member MT School Boards Association requested to clarify that for junior high school and high school students who were unpaid interns would have to be covered by a written agreement between the school and business partner. The bill unanimously passed the House on 2/17 and has been assigned to Senate Business, Labor & Economic Affairs Committee. MSIA supports the bill as amended, and worked with the sponsor and the others to address the issue of increased costs for businesses that support unpaid postsecondary internships as part of graduation and professional licensing requirements (mostly nurses and medical students) and to maintain unpaid high school internships.

HB 43 (R. Knudsen R-Culbertson) - Telemedicine. This bill broadens the application of telemedicine in Montana. The bill was heard in the Senate Public Health, Welfare and Safety Committee this week. Telemedicine is still not used much in Montana, in comparison to other states. With the COVID pandemic, telemedicine use both in workers’ compensation and general health has literally sky-rocketed in other states. The bill is expected to pass and be signed by Governor Gianforte.

HB 199 (D. Harvey D-Butte) – LMAC – Joint Petitions. This bill passed unanimously passed the Senate Business, Labor and Economic Affairs Committee on Tuesday 2/16. This is the LMAC bill which also includes permission to the Department of Labor and Industry in their material to injured workers to provide information about additional, non-statutory benefits provided by non-profits. This provides the opportunity to Kids Chance Montana provide information regarding how they can help kids of severely injured or killed parents at work MSIA, other businesses and associations, labor, insurers, and others supported the bill. MSIA supports this bill and there is no known reason this language would not pass and be signed by the Governor.

Need more information? Have questions? Know of a bill we should be watching? Don’t hesitate to reach out to me.

MONTANA SELF INSURERS' ASSOCIATION

2/19/21 - LEGISLATIVE WEEK 7

Kids Chance Scholarship Application Period Open
HB 297 – Guaranteed COVID Coverage for Nurses Fails & is Tabled
HB 412 – Choice of Provider Hearing Set 2/24
HB 446 – Prosthetic Definition Hearing Set 2/24
SB 118 – False Statements to Employers Hearing 2/19
MSF Operations Bills HB 511, 512, 513 and 514 Introduced

To review prior Legislative Weekly reports, check out the Members Only Section of our website - Montana Self Insurers' Association (mtselfinsurers.org). (Contact me if you forgot your password)

Last week I identified that the biggest workers’ compensation issues this session may be bills dealing with the operations of the State Fund. Senate President Mark Blasdel has a bill draft LC 2713 addressing MSF relationships with producers and four bills were introduced. HB 511, HB 512 is LC 355, HB 513 and HB 514 are aimed at MSF operations – two of which are likely to have a noticeable impact on the marketplace. In more MSF news, the Senate approved Governor Gianforte’s four MSF Board members, MSIA Secretary/Treasurer Mike Marsh, John Maxness, former owner of Exec Air, Richard Mitenberger, President of Montana Health Co-Op and Karen Fagg former VP at Dowl HKM Engineering. The Senate also rejected Governor Bullock’s hold-over nomination of Matt Mohr, a Bozeman Firefighter. Governor Gianforte has nominated Curt Laingen, of Laingen Trucking in Shepherd to fill that seat.

Kids Chance Scholarship Application Period Open

Kids Chance of Montana which provides educational scholarships to kids of severely injured or killed workers announced their scholarship application process is open for 2021. Kids Chance is a non-profit group with MSIA members serving on their Board of Directors and is supported by all facets of the workers compensation industry. The 2021 application deadline for the Kids’ Chance of Montana scholarship is March 31st. The Kids' Chance scholarship application is available at https://www.kidschanceofmontana.org/

Eligibility criteria is quite minimal beyond the experience of having a parent who suffered a catastrophic workplace injury or fatality. The scholarships can be used toward 2-Yr and 4-yr colleges/universities and technical/career education opportunities. The scholarships are renewable for continuing students. In the past 3 years Kids' Chance of MT has awarded approximately $66,000 in scholarships, ranging from $1,000-$3,500 each. To learn more, visit http://www.kidschanceofmontana.org/ Thanks to MSIA member Leah Tietz of the Montana University System Self-Funded Workers’ Compensation Program for the head’s up on this.

Legislative Activity This Week

HB 297 (Rep Caferro D-Helena) – this bill would have provided guaranteed workers’ compensation coverage to nurses who contract COVID. The bill failed on a 9-10 vote and then was tabled, which effectively ends consideration of the bill, by the House Business and Labor Committee today, 2/19. A couple of majority members commented that the bill only covered nurses, not other health care workers, first responders or essential workers. MSIA was the lead opponent on this language as the bill guaranteed coverage, if there was an exposure at work, regardless of where the disease may have been contracted. In effect, in guaranteeing coverage, it removed the concept of work to qualify for workers’ compensation benefits and replaced it with employment. The bill also prohibited carriers from using the losses to individually rate the employer – thus requiring subsidies from all other employers in the state. There is another bill draft request, LC 1350 (A. Olsen D-Missoula) with the title of creating a COVID presumption in the WC law which, if introduced could provide a rebuttable presumption and broaden the employments covered. No language is available as yet on that bill draft.

HB 412 (A. Olsen D- Missoula) – Choice of Provider. This bill would roll back the 2011 HB 334 workers’ compensation system reform of providing the employer or carrier the choice of medical provider to treat workers’ compensation injuries. MSIA will be opposing this bill at the House Business and Labor Committee hearing on Tuesday, 2/24. At the time of passage, NCCI assigned a more than 8% decrease in overall system cost to making the change to the current law. The system has seen significant average cost decreases since 2011 and we have been steadily reducing the average time away from work as the result of workers’ compensation injuries. Trial lawyers and labor have tried unsuccessfully every session since 2011 to repeal the choice of provider language. This is the 2021 attempt. Making this change will only serve to increase costs in the system.

HB 446 (Marshall R-Hamilton) – Prosthetic Definition. MSIA is helping to shepherd language which will provide in statute the current case law language that a prosthetic is “an artificial substitute for a missing body part.” This was subject to a proposed rule from the Department of Labor and Industry last year, which defined prosthetic more broadly including assistive devices. That proposed rule was stopped by the Economic Affairs Interim Committee because they saw it as providing a definition, which they considered in the purview of the legislature, not the administrative body charged with implementation of laws. The bill is set for hearing on Tuesday, 2/24.

SB 118 (Gauthier R-Helena) –False statements to employers. This is the KRMC bill providing that benefits be eliminated if the injury is the result of false information provided and relied on for hiring regarding disabilities. The bill was heard by the House Business & Labor Committee today and the Governor’s Office was one of the first proponents to testify on it. The bill is generally supported by the business community and the only opponent was the MT Trial Lawyers Association. The bill is expected to pass and the Governor is expected to sign it.

HB 511 (Gunderson R-Libby) – This bill would reduce the Risk Based Capital (RBC) MSF would be required to carry (RBC is one of the regulatory financial measurements to assure the insurance carrier can meet its’ financial obligations), permit MSF rates to only meet the RBC requirement, eliminate the requirement that in cases where costs are less clear that MSF rates be more conservative (higher) than not, require MSF adopt the NCCI loss cost filings and provide a statutorily set expense ratio for the MSF loss cost multiplier at .35%. In effect, at least by reducing the financial security MSF would be permitted to have, this language may have a de-stabilizing impact on the Montana workers’ compensation marketplace.

HB 512 (Noland R-Big Fork) – MSF pricing programs. This draft language would prohibit the MSF use of rating tiers, schedule rating and set in statute an expense constant for use within the State Fund’s loss cost multiplier calculation used in setting rates. In addition, the language would prohibit any business with an experience modification factor from being part of an MSF Safety Group. In limiting MSF’s pricing options, this bill too, can have an impact on the states’ workers compensation market.

HB 513 (Noland R-Big Fork) – This language would prohibit MSF from providing dividends and limit executive management compensation to 150% of the Governor’s compensation.

HB 514 (Noland R-Big Fork) – This language would require MSF to pay the premium tax applicable to all other insurance carriers.

Other Bills of Note

Here are some highlights from the list for this week:

HB 283 (F. Anderson R-Great Falls) – this bill has been amended as MSIA, the Montana Contractors Association and member MT School Boards Association requested to clarify that for junior high school and high school students who were unpaid interns would have to be covered by a written agreement between the school and business partner. The bill unanimously passed the House on 2/17 and has been assigned to Senate Business, Labor & Economic Affairs Committee. MSIA supports the bill as amended, and worked with the sponsor and the others to address the issue of increased costs for businesses that support unpaid postsecondary internships as part of graduation and professional licensing requirements (mostly nurses and medical students) and to maintain unpaid high school internships.

HB 43 (R. Knudsen R-Culbertson) - Telemedicine. This bill broadens the application of telemedicine in Montana. The bill was heard in the Senate Public Health, Welfare and Safety Committee this week. Telemedicine is still not used much in Montana, in comparison to other states. With the COVID pandemic, telemedicine use both in workers’ compensation and general health has literally sky-rocketed in other states. The bill is expected to pass and be signed by Governor Gianforte.

LC 2317 (Blasdel R-Kalispell) – MSF coverage and producer agreements. This draft language would prohibit MSF from contracting with others to provide coverage to the out of state business conducted by a Montana domiciled business. The draft also requires MSF to contract with all Montana licensed producers and pay a commission based on NCCI residual market commissions in other states.

LC 2208 (Trebas R-Great Falls) – Exclusive remedy. Dead – see MSIA Legislative Week 4 report.

Need more information? Have questions? Know of a bill we should be watching? Don’t hesitate to reach out to me.

MONTANA SELF INSURERS' ASSOCIATION

2/12/21 - Legislative Week 6

“As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy.” – Abraham Lincoln 1858(?) (b. 2/12/1809)

SB 65 – Limited COVID Liability is Now Law
HB 297 – Guaranteed Coverage for Nurses Who Contract COVID Hearing
LC 355 & LC 2317 MSF Bills Language Released
LC 22 WC Prosthetics Definition Released
SB 118 – False Statements to Employers Passes Senate

To review prior Legislative Weekly reports, check out the Members Only Section of our website - Montana Self Insurers' Association (mtselfinsurers.org). (Contact me if you forgot your password)

Last week I identified that the biggest workers’ compensation issues this session may be bills dealing with the operations of the State Fund. Senate President Mark Blasdel has released two LC drafts addressing the State Fund. In addition, MSIA Treasurer Mike Marsh has been confirmed by the Senate as one of the new members of the MSF Board of Directors. Other members confirmed by the Senate are John Maxness, former owner of Exec Air, Richard Mitenberger, President of Montana Health Co-Op and Karen Fagg former VP at Dowl HKM Engineering. Matt Mohr, a Bozeman Firefighter has also been nominated to a second term.

SB 65 (S. Fitzgerald R-Great Falls) - this bill provides limited COVID-19 Liability Protection and was signed into law on Wednesday, 2/10. MSIA testified in support of the bill. The bill was effective upon enactment.

HB 297 (Rep Caferro D-Helena) – this bill would provide guaranteed workers’ compensation coverage to nurses who contract COVID. The language is such that there does not have to be a work relationship to the coverage other than an exposure. The bill also prohibits use of the losses from that coverage in the experience rating system. The bill was heard in the House Business and Labor Committee on Thursday 2/11. MSIA testified against the bill both at the hearing and in writing and we were joined by the insurance industry and MSF. The bill is eligible for a vote by the Committee at the call of the Chair and we do not expect it to pass. However there is another bill draft request, LC 1350 (A. Olsen D-Missoula) with the title of creating a COVID presumption in the WC law. No language is available as yet on that bill draft.

LC 355 (Blasdel R-Kalispell) – MSF pricing programs. This draft language would prohibit the MSF use of rating tiers, schedule rating and set in statute an expense constant for use within the State Fund’s loss cost multiplier calculation used in setting rates. In addition, the language would prohibit any business with an experience modification factor from being part of an MSF Safety Group. This draft, along with LC 2317, is expected to generate a fair amount of discussion.

LC 22 (Ellsworth R-Hamilton) – Prosthetic Definition. MSIA is helping to shepherd language which will provide in statute the current case law language that a prosthetic is “an artificial substitute for a missing body part.” This was subject to a proposed rule from the Department of Labor and Industry last year, which defined prosthetic more broadly including assistive devices. That proposed rule was stopped by the Economic Affairs Interim Committee because they saw it as providing a definition, which they considered in the purview of the legislature, not the administrative body charged with implementation of laws. The language is in the final stages of drafting and may be introduced yet today or tomorrow (2/12 or 2/13).

Here are some highlights from the list for this week:

HB 283 (F. Anderson R-Great Falls) – this bill has been amended as MSIA, the Montana Contractors Association and member MT School Boards Association requested to clarify that for junior high school and high school students who were unpaid interns would have to be covered by a written agreement between the school and business partner. The bill unanimously passed the House Business and Labor Committee today, 2/12. MSIA testified in favor of the bill, with the amendments, and worked with the sponsor and the others to address the issue of increased costs for businesses that support unpaid postsecondary internships as part of graduation and professional licensing requirements (mostly nurses and medical students) and to maintain unpaid high school internships.

HB 43 (R. Knudsen R-Culbertson) telemedicine. This bill broadens the application of telemedicine in Montana. The bill passed the full House unanimously on Wednesday 2/10. Telemedicine is still not used much in Montana, in comparison to other states. With the COVID pandemic, telemedicine use both in workers’ compensation and general health has literally sky-rocketed in other states.

HB 198 (D. Harvey D-Butte) As amended in committee and then passed this week with unanimous support, this bill raises the death burial benefit to a maximum of $10,000 from the current $4000. The amendment eliminated the 5 year Departmental review and adjustment in the amount, based on inflation. The bill passed the full House unanimously on Wednesday 2/10 and has been assigned to the Senate Business, Labor and Economic Affairs Committee. MSIA testified in favor of the change identifying our current level is relatively low in comparison to other states and the increase will put Montana with 20 other states at that level or higher.

HB 199 (D. Harvey D-Butte) – LMAC – Joint Petitions. This bill was heard, with no opponents in the Senate Business, Labor and Economic Affairs Committee today, 2/12. This is the LMAC bill which also includes permission to the Department of Labor and Industry in their material to injured workers to provide information about additional, non-statutory benefits provided by non-profits. This provides the opportunity to Kids Chance Montana provide information regarding how they can help kids of severely injured or killed parents at work MSIA, other businesses and associations, labor, insurers, and others supported the bill. MSIA provided written testimony in support of the bill.

LC 1345 (A. Olsen D – Missoula) – this draft language would roll back the choice of physician change made as part of the 2011 reforms (HB 334-2011). At the time, NCCI assigned a more than 8% decrease in overall system cost to the change. The system has seen no overall average cost increases since 2011 and we have been steadily reducing the average time away from work as the result of workers’ compensation injuries. Trial lawyers and labor have tried unsuccessfully every session since 2011 to repeal that language. This is the 2021 attempt. NCCI has since decided they cannot appropriately assign a cost increase to this proposal because they now have conflicting studies on the impact. MSIA will vigorously oppose this language should it be introduced.

HB 118 (Ricci R-Laurel) MSF administrative laws. Dead – see MSIA Legislative Week 4 report.

LC 1589 (Noland R-Big Fork) – subrogation. Dead – see MSIA Legislative Week 4 report. I have kept this on the list because that LC number could be used for another draft. Just because our effort is over, does not mean the LC number is no longer valid for other language amending the workers’ compensation law.

LC 2208 (Trebas R-Great Falls) – exclusive remedy. Dead – see MSIA Legislative Week 4 report.

Need more information? Have questions? Know of a bill we should be watching? Don’t hesitate to reach out to me.

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MONTANA SELF INSURERS' ASSOCIATION

2/26/21 - Legislative Week 8

Legislative Activity This Week

Other Bills of Note

MONTANA SELF INSURERS' ASSOCIATION

2/19/21 - LEGISLATIVE WEEK 7

Legislative Activity This Week

Other Bills of Note

MONTANA SELF INSURERS' ASSOCIATION

2/12/21 - Legislative Week 6