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MONTANA SELF INSURERS' ASSOCIATION

MSIA UPDATE October 2024

  • CMS Webinar Alert - October 17 @ 11a MST
  • Two WCRI Studies – Medical Benchmark & Impacts of Attorneys On WC Payments
  • DOLI 2025 Legislative Proposal         
  • MSIA Legislative Priorities
  • Social Media Investigations Webinar – Coming Soon

New CMS Webinar Alert: Medicare Secondary Payer and Civil Money Penalties Webinar on October 17, 2024 @ 11a MST

With thanks to MSIA member Ametros for the heads up, the Centers for Medicare & Medicaid Services (CMS) recently announced that they will host a webinar on October 17, 2024, covering Certain Civil Money Penalties for Non-Group Health Plan (NGHP) Responsible Reporting Entities (RREs). This includes Mandatory Reporting for Workers’ Compensation, Liability Insurance, and No-Fault Insurance.  This same topic was discussed in our MSIA Webinar on September 19, featuring MSIA member Heather Schwartz Sanderson of Sanderson Firm, PLLC. Contact MSIA for a copy of Sanderson’s presentation package.


Webinar Details: 

Date: October 17th at 1:00 PM ET / 11:00 AM MT 

Webinar Link: https://cms.zoomgov.com/ 

Passcode: 145914 

Dial-In Number: (833) 568-8864 

Webinar Passcode: 160 201 1678 

Or to connect via phone:  

Conference Dial In: (833) 568-8864  

Conference Passcode: 160 201 1678 


The CMS-hosted webinar will include a presentation with reminders about the Final Rule, the auditing process, and important dates and will close with a question and answer session.

If you would like to submit questions in advance of the webinar, please email them to: Sec111CMP@cms.hhs.gov. 

Two WCRI Studies – Medical Benchmarks & Impact of Attorney Representation on WC Payments

WCRI issues a CompScope Medical Benchmarks study for 17 states each year; this is the 25th anniversary version. CompScope is a WCRI product which collects various datapoints from 17 states (Montana is not included) covering about 60 percent of the benefits payments in the country. While Montana is not included (there is a cost to contribute data) in my experience and based on DOLI data other than specific statutory exceptions, Montana falls in within the range of results for the CompScope states.

This year, with a review of claims data from 2017 through 2022 and claims experience through March 2023, WCRI found an overall decrease in medical utilization. This is likely driven by two overriding factors, strained hospital capacity and medical provider shortages and a fear of COVID-19. In those states where there was a rebound of non-COVID medical cases, levels of use have not rebounded to pre-pandemic levels. The studies (one per state) “…examined medical payments, prices, and utilization overall and by provider and type of service…and how those metrics of medical payments have changed over time.”  

The 17 states included are: AR, CA, FL, IL, IN, IA, LA, MA, MI, MN, NJ, NC, PA, TN, TX, VA & WI. Studies are available for each state other than AR, IA and TN - if you have business in the other states, there might be interest in reviewing the results.

I don’t expect it is much of a surprise to the audience of this UPDATE to learn that when attorneys get involved with workers’ compensation claims, the ultimate cost of the claim is somewhat higher.

The question has been, does attorney involvement in cases result in injured workers receiving the full benefits they are entitled to under the states’ law, or do they merely increase benefits paid and transaction costs. This new study, released last month from WCRI, Impact of Attorney Representation on Workers’ Compensation Payments, starts to more accurately answer the question.

As you might imagine as well, the answer is a little bit of both, at least until more research is done. WCRI looked at over 950,000 indemnity claims with more than 7 days of lost time. In states with higher attorney involvement (Illinois immediately comes to my mind), the effects of attorney involvement are lower likely because attorneys are getting involved in more of the ‘marginal’ cases and lower levels of benefits are involved. In states with lower attorney involvement their impact on payments are statistically noticeably higher. In those states, attorneys are likely becoming involved in the more complex and higher severity injury cases.

As to the causal relationship of attorney involvement and proper benefit provision, that question requires more research. Now, we have statistical and empirical support for attorney involvement increasing indemnity payment levels on a case-by-case basis. More in states with low attorney involvement, and less in states with higher attorney involvement.

Based on my personal knowledge of the Montana system, and a recent review by DOLI, we are low to average in terms of attorney involvement. Historically, roughly 85% of MT claims do not have attorney involvement. Of the remaining 15%, about 80 – 85% of those do not have an attorney involved. Since we’re dealing with a percentage of a percentage – let me make it simple – some 2.5 – 3% of all cases in Montana wind up with an attorney involved. For me, that is an indication that the system is working pretty well – this is a low to middle level of attorney involvement in a system. For me, again just for me, when plaintiff attorneys argue that the system is treating injured workers’ unfairly, typically their universe of MT claims is limited to what walks in their door and is generally not representative of the full system. It is neither the full body of claims, nor indemnity claims. Generally, Montana data is not included in WCRI studies as we do not contribute to WCRI.

MSIA is a member of WCRI and their work is available to members on request.

DOLI 2025 Legislative Proposal

Each session administrative agencies are asked to present their legislative goals to the Interim Committees (after they have been cleared by the Governor’s office). Typically the administration legislative proposals are more house-keeping and language clean up from prior sessions.

DOLI submitted their proposal to the Economic Affairs Interim Committee (EAIC). EAIC approval of the language, is not an endorsement, however, their rejection of language certainly sends a signal to both the drafters and the rest of the legislature. The Committee did not reject this language.

The Department seeks to change the definition of ‘employer’ for a very specific, uninsured, situation. The current language, in a loaned employee situation (and only in this situation) identifies the employer as the employer who loans an employee to another employer, AND who has obtained WC coverage (or is self insured). In a weird situation, there was a loaned employee who’s employer did not have coverage and the borrowing employer also did not have coverage. Of course there was an injury severe enough for everyone to notice. Based on the current language requiring the current loaning employer also to have coverage to be the statutory employer, and in the absence of the borrowing employer having coverage, the Uninsured Employers Fund did not really have an employer to seek remuneration from.

The Department proposes to eliminate the requirement that coverage also be available from the loaning employer. This should not impact the system significantly and addresses a situation where both employers violate the statute by not having coverage when required to. (39-71-117 (3)(a) and (b) – eliminate (b).

The Department also wants to change the reporting of benefits paid, expenses and medical expenses from a quarterly basis to an annual basis as the base for collection of the administrative fund for the Department. (39-71-306 (1) change from quarterly reporting to annual reporting).

Perhaps the most interesting change the Department is seeking to make is to the Medical Status Form. Currently, the form is detailed enough that the employer cannot get the same information the insurer, as payer of benefits, gets. Thus there is a physically complicated form as employers (versus benefit payers) are not permitted, under MT privacy laws to a treatment plan or the identification of medications prescribed for an injured worker. The benefit payer gets this information through treatment notes anyway, so in effect, there is no impact to them.

There is one additional change proposed to make to the Medical Status Form which I would appreciate your perspective on. The Department is proposing to eliminate the anticipated MMI date. To my knowledge, this is not protected medical information. Should we request that information continue to be included in the form, or are we satisfied that we will have that information through regular medical notes? (39-71-1046 – eliminate (c),(d) and (j). 

MSIA Legislative Priorities

Our legislative priorities are based on system costs, efficiency, new ideas and proposals in the workers’ compensation world, and most importantly, your feedback based on responses to the Annual Membership Survey.

We are opposed to changing the current choice of physician language as an example of system cost impacts. When we changed from employee choice of physician to employer choice of physician in 2011, there was an immediate decrease in system costs of over 8%. Changing that aspect of our law back can be expected to increase our system costs, increase durations of claims and treatments and not improve the outcome of those treatments. This is a perennial proposal each session and we anticipate we will discuss it again this session.

As a result of our Annual Membership Survey, we no longer have to oppose qualified Physician Assistants from becoming treating providers in the system. Current law permits PA’s to become independent medical providers, for everything but WC, after three years of supervised treatment. That became law last session, and we successfully worked to exempt the WC system based on your input. The physician, and general medical provider shortage has not improved in the last two years – if anything it has gotten worse. Based on your input, we no longer have to oppose PAs from becoming treating providers – after they have enough supervised experience. This is a proposal that is being enacted across the country as a way to address the physician shortage. While we will not champion this proposal, and will work to make sure there are experience requirements included, we do not have to oppose it any longer.

There is a quirk in the law regarding employer provided transportation and coverage. Under the current language of 39-71-407 when the employer provides transportation, anytime the employee is in that vehicle, they are covered. Hypothetically, if the employer permits personal use of the vehicle and the employee is driving their family on vacation, if there is an accident, the employee is covered by WC. MSIA will work this year to limit that coverage to situations where the vehicle is being used for work purposes.

There may be another quirk in the law identified by the new Workers’ Compensation Court Judge Lee Bruner. The Judge has determined where a guardian ad litem needed to be replaced, the existing statute does not grant that authority to the Court.

Those are a number of proposals within last sessions complex litigation reform bill, HB 678 that we would like to see enacted, including limitations on IME physicians discovery of their personal finances and history, testimony of health care professionals weighting based on education, experience and expertise in the medical field in question, a balanced approach towards the deference of treating physicians in testimony, eliminating the 14 day notice for full duty releases, a limitation on what issues are ripe for DOLI emergency orders and failure to comply with the selection of a treating physician or to cooperate with an assigned nurse case manager can result in termination of benefits.

These proposals can be expected to draw a significant amount of attention and will be tougher to enact than the others. However to improve the system, we have to at least try and we should expect at least some of these proposals to be enacted. There are common sense reasons for supporting them and while there might not be an immediate system cost impact, they will improve the operation of the system.

In addition to the choice of provider issue, we can expect efforts to expand the existing presumptions in our law, benefit increases and mental – mental benefits. I hope we are done with vaccination coverage questions, but those proposals may come back again. MSIA will continue to oppose the enactment of these ideas. Benefit increases are potentially viable, if there are other system changes which offset the costs in the system. So far, no one has proposed anything that could support that, but rather than be categorically opposed we can listen to balanced proposals (we just haven’t seen any yet).

Coming Soon – Social Media Investigations Webinar 12/5 @ 10a MST

We are not ready to formally announce the next CE Webinar yet, but it will be on December 5 at 10a MST and will feature Michael Petrie with MSIA member Webutation, Inc. The company provides social media investigations and provides evidentiary level results, should an issue reach that stage, even if the information has subsequently been deleted. I have seen Mr. Petrie’s presentation and this webinar promises to be very interesting, informative, and honestly, it scared me how much information is available if you need to get it.

The webinar will be formally announced in the beginning of November. This is the exclusive membership heads up that its’ coming!