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MONTANA SELF INSURERS' ASSOCIATION

MSIA Update / Leg. Week 12

  • WCC Decision - Neisinger v New Hampshire Ins Co
  • Senate Follies Continue
  • Legislative Action – a Quieter Week
  • Welcome New Member - - Rx Bridge

WCC Decision – Neisinger v New Hampshire Ins Co

In Neisinger v New Hampsire Ins Co (NHIC), the MT Workers’ Compensation Court (WCC) reversed a Departmental ruling finding that the injured worker, Michael Neisinger was unreasonable in failing to attend an IME appointment and a consultation regarding ketamine treatment, and that temporary suspension of benefits was appropriate. On March 25, the WCC determined the Department’s decisions were incorrect, based on errors of law.

Neisinger suffered a workplace injury and allegedly developed mental health conditions as a result. NHIC accepted liability for all and started paying benefits. Sometime later, IMEs requested by NHIC disagreed with the current treatment approach, with which the treating physicians disagreed. About a year later, NHIC again requested an out-of-town IME and a consultation with a different provider to review the potential of continued ketamine treatment.

Neisinger objected to the IME based on the location of the physician and current statute requiring that the scheduling of an IME consider, “…the employee’s convenience, physical condition, and the ability to attend at the time and place that is as close to the employee’s residence as is practical.” (see discussion of SB 345, below). The Department disagreed with Neisinger, and found his failure to attend the IME unreasonable. As a result, the Department also approved the NHIC request to suspend benefits.

The WCC determined that NHIC failed to demonstrate why a more local IME provider to Neisinger could not be found. Based on that, the Court reversed the unreasonable failure to attend finding. Since the alleged unreasonable refusal to attend the IME, which was the basis for temporary termination of benefits was no longer valid, the suspension of benefits was no longer appropriate either and ordered the payment of the suspended benefits.

Senate Follies Continue

The Senate continues to try to beat itself up – with some measure of success.

First – the Ethics Committee came down with their report on Senator Jason Ellsworth’s actions in the waning days of his position as Senate President at the end of 2024. To briefly review, Ellsworth (R-Hamilton), as Senate President, signed a contract with a business associate to review the impact of legislation expected to pass in the next session, and broke the contract into two contracts, allegedly to avoid the need to go to an RFP for the work. Ultimately no money was paid, and the work was not performed. The Ethics Committee Chair, Forest Mandeville (R-Columbus) recommended expulsion of Ellsworth for what the Legislative Auditor (an independent review organization) found to be wasteful and inappropriate efforts.

Expulsion requires a 2/3s majority vote – 34 votes. For his part, Ellsworth denied any wrongdoing but apologized for bringing the appearance of impropriety to the Chamber. A majority voted in favor, 27 – 23 but failed to get to the 2/3s needed to adopt the motion. They then tried a Censure motion with the same outcome. Thus, the punishment for Ellsworth is, well, undecided. He remains on Committees, remains in the Senate and continues to work on issues.

Meanwhile, the current President, Matt Regier (R-Kalispell) saw his own review of actions take place. He was accused of inappropriately retaining a counsel for the majority without permission of the Chamber. Regier was Speaker of the House last session and retained a private attorney for the majority there – without specific permission. The amounts paid were under the requirements for a formal disclosure or contract. Even so, as Speaker he proposed a bill to provide that permission and it failed. The Legislative Auditor’s office after a review of records and interviews, found no impropriety, nor waste, fraud or abuse. Interestingly, Regier attacked the press who reported on the attorney’s hiring. While the Legislative Auditor did not comment on the press reports, they confirmed the facts as they were reported.

What does it all mean? I honestly don’t know at this point. We have seen some bills we are concerned with, move farther than they have in the past. At the same time, none of them have advanced beyond the floor. Can it be that part of the deal is to get bills out of committee only and let them take their normal course on the floor? That’s possible, but we will likely not know, until after the session is over.

Legislative Action – A Quieter Week

  • HB 143 – PAs as Treating Providers – Passes Senate – to Governor
  • SB 345 – Eliminate Tx Provider Deference & Ease of IMEs – Hearing House Bus & Labor - 3/31
  • SB 109 – PT’s as Treating Providers – Passes House – to Governor
  • HB 367 – MSIA Transportation bill – Hearing Sen Bus & Labor 3/18
  • SB 394 – PTSD for First Responders – Hearing Sen Finance & Claims 3/20
  • SB 338 – Guardian ad Litem – Hearing House Bus & Labor 3/20
  • HB 740 – Family Pharmacy PBM Bill – Hearing Sen Judiciary 4/1 

Last week was nutz. We had 8 bills we were following up for hearings in different committees – all heard last week. Looking ahead, there may be only two bills we are tracking up for a hearing next week – SB 345, our requested bill, and HB 740. Fiscal bills, either expenditures or revenue, have their own transmittal dates of 4/4 and 4/7 – thus next week we will see lots and lots of action – mostly on those bills. However, legislative leadership will also want to clean up most other bills just hanging out.  


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 Health committee and passed the same day 11-0. MSIA supports this proposal. The bill passed the Senate 50-0 on 3/27 and will be sent to the Governor, where he is expected to sign it into law.

 

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. This bill is set for House Bus & Labor Committee hearing on 3/31. We expect significant opposition from labor and plaintiff attorneys.

 

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. The bill was passed by the House Bus & Labor Committee 20-0 on 3/21 and then passed the House 99-0 on 3/27. The bill will next go to the Governor where he is expected to sign it into law.


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 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. The bill remains on the Committee agenda for decision.


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. The bill was passed by House Bus & Labor 20-0 on 3/21. We do not anticipate an issue with this bill passing and becoming law.


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. The bill is set for hearing on 4/1 in the Senate Judiciary Committee. We do not anticipate an issue with our desired amendment.


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.

 

Welcome New Member - - Rx Bridge

RxBridge is a pharmacy benefit manager (PBM) dedicated to the Workers’ Compensation space. We specialize in delivering efficient, cost-effective pharmacy solutions tailored to the unique needs of injured workers.

What sets RxBridge apart is our commitment to listening to our partners and collaborating closely to provide customizable programs, robust clinical oversight, and a strong focus on enhancing the injured worker experience. Our technology-driven approach ensures streamlined claims processing and supports compliance every step of the way. For more information contact Patti Kelly at PKelly@RxBridge.com or 267-792-7434