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MONTANA SELF INSURERS' ASSOCIATION

MSIA Update / Leg. Week 11

  • WCRI Annual Meeting Report – Part 2
  • WCRI Webinar – Overview of Changes in Claim Composition – April 17
  • Legislation – And The Beat Goes On
  • SB 345 – Eliminate Treating Provider Deference & Ease of IMEs – Pass Sen Cmte 3/20
  • SB 109 – PT’s as Treating Providers - Hearing House Bus & Labor 3/20
  • HB 367 – MSIA Transportation bill – Hearing Sen Bus & Labor 3/18
  • SB 308 – Eliminate the Cap on Benefits – Killed in Sen Finance & Claims 3/20
  • SB 394 – PTSD for First Responders – Hearing Sen Finance & Claims 3/20
  • HB 516 – Transfer WC Court to Judiciary – Pass Sen Bus & Labor 3/20 – Next to Sen Finance & Claims
  • SB 338 – Guardian ad Litem – Hearing House Bus & Labor 3/20
  • HB 143 – PAs as Treating Providers – Hearing Sen Pub Health 3/19
  • HB 197 – Overturn Rainey Decision – Passes 3/20 – On To Gov
  • HB 740 – Family Pharmacy PBM Bill – Hearing Sen Judiciary 4/1

WCRI Annual Meeting Report – Part 2 

Last week we provided the first part of our report on the Workers’ Compensation Research Institute Annual Conference highlighting the two keynote presentations – Healthcare Policy & the 2024 Election and Threats to Healthcare Access in Rural America. The remaining presentations from the meeting are attached. MSIA is a member of WCRI and we can provide access to their studies, reports and materials upon request of MSIA members.

In my opinion, the WCRI Annual Conference is one of the more important workers’ compensation meetings of the year. WCRI seeks out the input and participation of labor and plaintiff attorneys as well as medical providers of all kinds, businesses, insurers, vendors and public policymakers and regulators. This year, it specifically spoke to some of our issues – health care and access in rural America. In one of my questions to the speakers, I identified that Montana defines rural America.

This week, we will finish the WCRI Annual Conference report starting with Dr. Gary Franklin’s presentation, Pre-Injury Opioid Use and Impact on Workers’ Compensation, Alex Swedlow, President of the California Workers’ Compensation Institute’s presentation, Current Events in the California Workers’ Compensation System (which is more interesting than it sounds) and the WCRI presentations on Changes in Medical Workforce and Impact on Claims, and the State of the States.

Pre-Injury Opioid Use and Impact on Workers’ Compensation

Dr. Gary Franklin is the Research Professor at the Departments of Environmental Health, Neurology and Health Services at the University of Washington as well as the Medical Director for the Washington Department of Labor and Industries. Franklin, was one of the first in either medicine or workers’ compensation to identify the problems with opioid use and prescriptions in our society, let alone workers’ compensation and injury recovery. He also was among the first to recognize the lack of efficacy in back surgeries. As a result of his work, the Washington system has been held up as one of the leaders in pharmacy and surgical management in workers’ compensation systems.

Franklin stunned most of the WCRI audience when he identified the CDC in November 2022 loosened Opioid Guidelines within the last few years. They no longer provide recommendations on dosing thresholds (a significant change) and they offer advice that physicians “carefully evaluate individual benefits and risks” of opioid use – and they eliminated the recommended limitations on days supply of the first opioid prescription.

For those of us old enough to remember – we have seen this kind of language before - which helped create the opioid crisis. Franklin offered there is very little evidence that prescribers can adequately assess risk/benefit to accomplish the wishy-washy language [my words] of the CDC guidance.

Using the Washington Prescription Drug Monitoring Program (PDMP) data, Franklin demonstrated there are a number of injured workers who are on opioids the WC system is not paying for. However, these opioid prescriptions and the patient’s reliance on these drugs are likely impacting progress and recovery, including surgical outcomes. Of equal importance, the WC treating physician, unless they are checking the PDMP as they are permitted to do in every state, is likely unaware of the patients opioid use and prescriptions.

Franklin called on physicians to check the PDMP (too few states require physician review – ed. note) as the PDMP records have all prescription histories for every prescription written in the state. Those records can make a difference in treatment, certainly in prescribing, and may help explain extended healing periods.

Current Events in the California Workers’ Compensation System

Alex Swedlow, President of the California Workers’ Compensation Institute in his Current Events in the California Workers’ Compensation System gave us a taste of how well the California system has been working and what they see coming. I always take the approach in our business that everything starts in CA and winds up going all over the rest of the country. Not matter how boring a title, Swedlow is always interesting at least in part because he insists on using data to back up his thoughts. Swedlow is retiring this year, and he may have let his hair down a little. I encourage you to look at the Tightness/Looseness influences on workers’ compensation systems, and his heat related injury findings. I’ll give you a hint – heat may well be an issue, however, when using actual data – 3.2 million claims in CA from 2019 – 2023 - the conclusions might be different than you expect.

State of the States

In their State of the States presentation, WCRI confirmed for us that overall costs of claims are going up. When looking at the last few years in two-year increments, the results, in the 18 states studied (Montana was not included) are like this:

  • 2017–2019: Growth 3% per year
  • 2019–2021: Decrease 1% per year
  • 2021–2023: Growth 7% per year

Part of the reasons are increases in indemnity, based on the sharp rise in wages since the pandemic. Even so, costs are going up faster than the average wage. As we have seen in Montana, with the most recent NCCI loss cost filing, we may have hit the point where overall system claim costs are going up faster than the decreases in frequency can absorb. NCCI initially filed for a 0.5% increase, and modified it to be a 0% overall average change in the system. Had their initial filing held up, it would have been the first NCCI increase in Montana since 2006.

WCRI saw continued questions in the overall WC marketplace:

  • How will changing labor market conditions continue to impact indemnity benefits?
  • In what areas will price inflation impact the system?
  • To what extent will utilization of medical services return to or exceed pre-pandemic levels?

Changes in Medical Workforce and Impact on Claims

In the WCRI staff presentation, Changes in Medical Workforce and Impact on Claims they went through the numbers of new medical providers and the impact the changes in who we work with when we are injured have had on workers’ compensation. Once again, Montana is not included in the WCRI study states. However, we feel the same things the study states feel – when we apply the information to Montana, except for specific statutory or case law differences – it has been my experience that, as a general rule our results are typically within the range of findings from the study states.

We are moving into interesting times in terms of research information. We have solid data regarding our world pre-pandemic and we are now generating solid data for the time periods during and immediately after the pandemic. The differences are intriguing and of course, reflect that the pandemic not only rocked our society, but changed the workers’ compensation results as well. We saw that above in the claim costs. Here too, that’s the case.

The hard numbers of physicians increased during the time period – however – the growth of our population increased faster. That means there are fewer physicians per captia. We also saw significant increases in the numbers of Advanced Practice Nurses (NPs) and a moderate increase in Physician Assistants (PAs) who become treating providers in workers’ compensation. While these positions are considered ‘mid-level’ medical providers – they are taking over more and more of the initial and extended care of patients – in workers’ compensation and throughout our health care systems. WCRI identified a noticeable increase in WC first visits to NPs and PAs versus physicians. The shift was even more pronounced in rural areas.

The conclusion was that the shift to NPs taking on more WC injuries has lead to a slight increase in temporary disability durations:

  • 0.8% increase in medical costs/claim
  • 1.7% increase in indemnity costs/claim
  • 5.5% increase in temporary disability durations

WCRI Webinar – Overview of Changes in Claim Composition – April 17

WCRI is also hosting a webinar on April 17 on their Flash Report, Overview of Workers’ Compensation Claims Composition. They will provide observations in shifts in claims characteristics from 2017 – 2022. What is important about that, is the time periods before, during and immediately after the pandemic.

  • How did the relative share of work injuries change by industry?
  • Did the proportion of women/men among work-related injuries change?
  • What was the most frequent injury type, and were there differences in injury distribution by age, gender, and industry?
  • Did work-related injuries occur more frequently among younger or older workers?

The Webinar is free to WCRI members and $50 for non- members. While MSIA is a member of WCRI we cannot extend that to MSIA members for the Webinar. We can provide the study the webinar is based on to you with your request. Just contact us either by phone, text or email. In addition to the other questions, the study clearly identifies that about half of reported injuries come from workers with 2 years or less experience in the job. Register for this Webinar Here: WCRI Webinar Register

Legislation – And The Beat Goes On

  • SB 345 – Eliminate Tx Provider Deference & Ease of IMEs – Pass Sen Cmte 3/20
  • SB 109 – PT’s as Treating Providers - Hearing House Bus & Labor 3/20
  • HB 367 – MSIA Transportation bill – Hearing Sen Bus & Labor 3/18
  • SB 308 – Eliminate the Cap on Benefits – Killed in Sen Finance & Claims 3/20
  • SB 394 – PTSD for First Responders – Hearing Sen Finance & Claims 3/20
  • HB 516 – Transfer WC Court to Judiciary – Pass Sen Bus & Labor 3/20 – Next to Finance & Claims
  • SB 338 – Guardian ad Litem – Hearing House Bus & Labor 3/20
  • HB 143 – PAs as Treating Providers – Hearing Sen Pub Health 3/19
  • HB 197 – Overturn Rainey Decision – Passes 3/20 – On To Gov
  • HB 740 – Family Pharmacy PBM Bill – Hearing Sen Judiciary 4/1

The Senate seems to have quieted down some. I have not heard too much about the silliness that has dominated the conversations so far this year. They are hearing bills and responding kind of as they’re supposed to regarding bills that survive the Transmittal Deadline. I continue to be wary however. While I am not a conspiracist (well, maybe I am….) I assume nothing is for free. What we don’t know is what the cost might be to the nine who have worked with the minority to change rules an committee membership.

Could it be that bills we did not want to move, did so, but the commitment was not to pass them through the chamber? We have seen SB 295 – Choice of Physician get farther than it has since we changed the law in 2011. It passed committee, but was killed on the Senate floor. SB 308 – to eliminate the cap on benefits and then amended to limit them to $150,000 which does not impact the cost estimate, also passed committee for the first time. It was killed (for now) in Senate Finance & Claims Committee, but still, why did it get through the initial committee? Important, perhaps is the change in membership in the Senate Business & Labor Committee to add people who when teamed with the Dem minority on that committee, can pass bills through. SB 394 – PTSD for First Responders died by one vote in the House, but the companion bill is still alive in the Senate. I have to wonder what’s going on, and how it may impact our business.

I honestly don’t have answers and will continue to watch and be careful about what could happen, versus what should otherwise be expected to happen.

Another new bill on our list this week is HB 740. This is part of a national effort by independent pharmacies to limit the cost reductions they would have to accept from PBMs. This issue is much more important on the health coverage side, if only because WC is such a minimal part of US healthcare spend. However, as originally drafted the bill explicitly included WC. That explicit reference has been deleted, but the bill continues to include a reference through the health insurance code to WC. We have language to make another amendment, but the bill is now under fire from the health insurance industry, and making more changes, will be more difficult. In fairness, this was not a high priority for the WC industry, but we need to make sure at least this last change is included. Failure to do so, will create a conflict within the insurance code and the workers’ compensation code, that could only be unraveled by the Courts or another legislative change. We’re hoping to change it now, rather than letting it go, creating confusion, uncertainty and ultimately having it challenged in the Courts.

SB 345 / Hertz (R-Polson)

This is another MSIA requested bill to end the deference to treating physicians in litigated cases and ask the Judge to provide credibility on testimony and experience, make it easier to secure an IME and provide some ancillary benefits to support an IME when travel is involved. The bill passed Sen Bus & Labor 12-0 on 3/4 and was re-referred to Senate Finance & Claims. It was then heard on 3/19 in Finance & Claims and passed 22-0 on 3/20. It is up for final Senate consideration today and we expect it to pass and go to the House for consideration. MSIA was the lead proponent on this bill and was joined by the Plan 2 carriers, businesses, as well as MSIA members MCCF and MSGIA and MSF.

 

SB 109 / Hertz R-Polson

This bill would allow Physical Therapists to be Treating Physicians. PTs have alleged that about 12 other states allow for ‘Direct Access’ to PTs for workers’ compensation claims. That may be, but the requirements for a ‘Treating Physician’ in the Montana WC system require them to make a diagnosis, be the gatekeeper for treatment – referring to other specialists as needed, provide the release to return to work, determine maximum medical improvement and provide impairment ratings – few of which a licensed PT in Montana can do. In our opinion, this proposal takes access to health care providers too far. The bill passed the Senate 50–0 on 2/18 and was heard in House Bus & Labor on 3/20. MSIA was the lead opponent on this bill.


HB 367 / Buttrey R-GTF

This bill is an MSIA requested bill to strengthen the language to limit coverage application when the employer provides a vehicle or payment for travel. Over the years, the Supreme Court has expanded the going and coming rule to include situations where any travel where the employer provided a vehicle or some kind of payment for travel to remote locations to be covered. The bill will be heard on Tuesday 2/11 in House Bus & Labor Committee. A large group of businesses supported the bill in the hearing held on 2/13 in House Bus & Labor. MSIA members MCCF and MSBGIA testified in favor of the bill. The MSIA and supporting testimony focused on clarification of the legislative intent and that nothing is being taken away from injured workers. Only the plaintiffs attorneys opposed the bill and their main point was there was no Court decision needed to be overturned. Our response is the pipe has some leaks, we don’t have to wait until the pipe breaks to fix it. A technical amendment will be offered with the support of MSIA and the sponsor. The bill, with the amendment, passed the House 98 – 0 on 2/21 and was heard in Sen Bus & Labor on 3/18 and passed 12-0 on 3/20. MSIA was the lead proponent of this bill and MSIA member MCCF testified in favor as did MSGIA.


SB 308 / Harvey (D-BTE)

This bill would remove the SAWW cap on benefits. MSIA was the lead opponent to this proposal as it un-balances the workers’ comp system, which is supposed to provide benefits with a reasonable approach to actual wages at a reasonable cost to employers. This proposal, according to NCCI, would result in a system cost increase of between 6.5 – 7.7% the day it became law. Our current cap on benefits is part of a national standard and 30 states have the same – or a lower – cap. There is a rumor that an attempt to appease some opposition by putting a $150,000 cap would be made. In effect, there is no difference. The bill has been referred to Senate Finance & Claims for consideration. MSIA opposes this bill. The bill was re-referred to the Senate Finance & Claims Committee by a 25-24 vote, was heard on 3/19 and tabled (killed) by the Committee 14-8 on 3/20.


SB 394 / Neumann (D-BZN)

This bill provides for PTSD claim opportunities for law enforcement and first responders. Rather than provide a presumption, the language requires claims to go through the WC process for compensability determination. However, it provides a carve out from the existing prohibition on ‘mental-mental’ claims. There are only 12 states which continue to exclude mental-mental claims in their WC systems. And the trend across the country has been to provide presumptive PTSD coverage for first responders. The bill was heard in Senate Bus & Labor on 3/4 and MSIA was the lead opponent. The bill passed from that Committee 7-5 later that day. It was then re-referred to Senate Finance & Claims for further consideration where it was heard on 3/19. MSIA testified in opposition to the bill, as did MSIA member MSGIA offering what may be a unique program in Georgia, which may be a better approach to addressing the issue by creating a special program within municipalities health care programs for PTSD for first responders. We offered a study would be a better approach to resolving the issue. MSIA also sent talking points to some members of the Committee. We will continue to try to defeat this bill, or find an alternative solution, rather than pushing all these costs onto employers. The Governor’s office does not oppose this bill. MSIA was the lead opponent to this bill.


HB 516 / Walsh (R-Twin Bridges)

This bill would move the WC Court from the Department of Labor to the Judiciary. The bill was heard in House Bus & Labor on 2/25 and passed 20-0. The bill passed the House 95-2 on 3/3 and was heard in Sen Bus & Labor on 3/20 where it passed 8-4 on the same day. There is a clarification needed on this bill to continue the funding through the DOLI Administrative assessment to workers’ compensation insurers (including Plan 1, self-insurers). That amendment is pending and will be discussed in the Senate Finance & Claims Committee. MSIA supports this bill.


SB 338 / Hertz (R-Polson)

This bill provides the WC Court Judge with the authority to appoint, or terminate an Guardian ad Litem. The WC Court Judge was asked to appoint a new Guardian ad Litem and he ruled he could not, as the statutory language does not provide him that ability. Although this has been done for the 100 years or so of the WC system in Montana, the statutory language to support it was not there. This bill was heard in Sen Bus & Labor on 2/26 and has passed the Senate unanimously. The bill was heard in House Bus & Labor on 3/20 and had no opposition. MSIA supports this bill. We do not anticipate an issue with this bill passing and becoming law.


HB 143 / Etchart R-BIL

This bill permits PAs to be treating physicians. The bill passed the House 98 – 0 and was heard on 3/19 in Sen Public Healthcommittee and passed the same day 11-0. MSIA supports this proposal. We do not anticipate any issues with this bill passing and becoming law.

 

HB 197 / Nicastro (R-BIL)

This bill would overturn the Rainey Supreme Court decision, which currently requires – for full duty releases – job analyses and treating physician approval, along with the 14 day notice, before the injured worker could have their benefits terminated. With a minor amendment, providing that benefits could be terminated when the injured worker returned to work, or the 14 day notice, whichever comes first, organized labor supported the bill as well. The bill passed the Senate 35-14 and the House concurred in the amendment 59-39 on 3/20. The bill will now go the the Governor’s desk where he is expected to sign it. MSIA supports this bill.


HB 740 / Bertoligio (R-Clancy)

This bill is aimed at providing more control over PBM relationships by independent pharmacies. While an initial amendment eliminated the reference to application to the workers’ compensation statutes, there remained a reference to the PBM statutory language which would have increased pharmacy costs to WC carriers (including self insurers). MSIA is working with others to make a final amendment to eliminate that reference so there is no impact to WC coverage. First, WC is a minimal payer to pharmacies, in comparison to health coverage and there is already a WC pharmacy fee schedule. At the least, not making this change would result in a conflict within the statutory language. The bill has passed the House 98-1 on 3/7. MSIA is working on an amendment to this language to eliminate reference to the WC statutory language.

For a full list of legislation we are following – see the attached spreadsheet for more details and access to links to the language, fiscal notes or amendments. Bills that are now dead-ish are included at the bottom of the spreadsheet. We do not consider any proposal dead, dead, until two days after session ends.