MONTANA SELF INSURERS' ASSOCIATION
MSIA Update / Leg. Week 5
- Legislative Week 5 – Senate Still Not Settled
- HB 367 – MSIA Transportation Bill – Hearing 2/11
- LC 660 – Choice of Physician Bill Available
- HB 428 – DOLI Clean-Up Bill Introduced
- LC 664 – Require Ann. Updates to Lodging Costs included as wages
- LC 1604 – Prohibit Illegal Alien Hiring
If you had told me the Senate majority would be so divided, so acrimonious, I would have thought you were nutz! On Thursday, there was a motion to remove former Senate President Jason Ellsworthm(R-Hamilton) from the Budget Committee as part of an obvious effort by leadership to minimize his role in public policy and ability to get things done. That brought a counter motion from the Senate Minority Leader, Sen. Pat Flowers (D-Bozeman) to suspend the Ethics Committee that had been appointed the week before, and their review of Ellsworths’ actions and have investigation transferred to the Department of Justice. This was apparently a surprise to the Attorney General (Austin Knudsen – himself a member of the more conservative wing of the Republicans and a former House Speaker), the elected head of the Department of Justice.
That motion ‘brought down the house’. The rest of the afternoon was taken up by counter motions, cross motions and personal finger pointing within the Chamber. When the dust finally settled – and there was a lot of dust – to the point where proceedings were stopped to figure out what motions were permitted, which ones were against the rules and how to proceed with any of it. In the end, Flowers motion to suspend the Senate Ethics Committee review got support from Ellsworth and 8 other Republicans and passed 27-22. This was the same vote as the changing of the rules motion Flowers made on day 1, which started this year’s Senate turmoil.
To review – after the election, the Senate majority caucus (Republicans) agreed to DRAFT rules, which created an Executive Branch Review Committee, which ostensibly would have reviewed hold-over appointments, new appointments and (maybe) ANY proposal the Governor made for the legislature to consider. I have worked in about 25 different states and have never seen such a committee. It was the Senate majority leadership telling the Governor, they didn’t like him. In fairness, the Governor supported primary opponents (who lost) against the people who became the Senate President (Matt Regier R-Kalispell) and the House Speaker (Brandon Ler R-Savage). This may have been their way of saying, “We noticed/.”
On the first day of the session, Flowers submitted a motion to make that Committee an ‘on call’ committee versus a standing committee and reassign the members to other committees – strengthening the Dems positions on the other committees and ending the heightened legislative review of the Governor’s proposals and appointments. That motion passed with Ellsworth leading the nine Republicans supporting the Democrats proposal.
Just because it can’t be that simple, in the closing days of his term as Senate President at the end of last year, Ellsworth awarded a no-bid contract to a business associate to perform work that is typically done by legislative staff. When the issues first came to light, the contractor walked away from the contract. No work was performed and no payments have been made. A legislative audit identified the contract and Ellsworths’ actions, at the least, inappropriate. Ellsworth has denied having done anything wrong.
That prompted last week's appointment of the Ethics Committee and the start of a legislative investigation. Identifying the decisions of the Ethics Committee as moving into the prosecutorial role, Flowers moved to send the investigation to the DOJ.
Guys – you can’t make this stuff up. As a result, the Senate seems nearly incapable of doing anything – the rancor spills into some of the Committee hearings. And – while the House continues its’ business and is passing bills, those bills have been assigned to the Senate, and there they sit – some still waiting Committee assignments. Until that happens – nothing happens. That’s OK for now, but at some point, something has to pass (maybe a budget, continuation of Medicaid expansion, our bills….)
HB 367 / LC 1353 / Buttrey R-GTF
This bill is an MSIA requested bill to strengthen the language regarding coverage application when the employer provides a vehicle or payment for travel, to limit it to when the employee is in the course and scope of employment. 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. MSIA will be the lead proponent. A technical amendment will be offered with the support of MSIA and the sponsor.
LC 660 / A. Olsen / D-MSO
This language would change the choice of physician back to the employee choice, versus the current employer choice.
MSIA opposes this bill. Since the change in law, in 2011, the Montana workers’ compensation system has seen durations decrease, medical utilization decrease and the resulting decrease in costs, and injured workers’ ability to return to their lives and families faster. While the bill has been requested by a Senator, it is possible it will be actually introduced in the House. MSIA opposes this proposal.
HB 428 / LC 458 / Thiel R-Sidney
This bill is the Department of Labor ‘clean up’ bill (originally requested by a member of the Senate – see info above) . It provides a clarification of “employer” in a borrowed employee situation, provides for annual instead of quarterly reporting of losses for Administrative Fund assessments and changes the medical status form so that only one form would be needed, rather than two with the second providing medical information not permitted to be shared with the insurer. MSIA supports this bill.
LC 664 / A. Olsen / D-MSO
This proposal would require the Department of Labor to annually update the costs of lodging, when they are included in the wage calculation for employment. MSIA does not have a position on this proposal at this time.
LC 1604 / Schubert / R-Kalispell
This proposal would make it illegal to retain people not legally permitted to be employed and provides significant penalties. MSIA does not have a position on this proposal at this time.
LC 1564 / Reavis / D-BIL
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. In so doing, it likely creates an equal protection violation of constitutional language. That argument, which will be made, could lead to a proposal that everyone have access to mental-mental claim benefits. There are only about 12 states which continue to exclude mental-mental claims in their WC systems. And, the trend across the country has been to provide presumptive coverage for first responders. MSIA opposes this bill. No change.
LC 1836 / Harvey / D-Butte
This bill eliminates the benefit cap based on State Average Weekly Wage, which will have a significant impact on benefits for higher wage earners. NCCI has been notified of the language and has been asked to estimate the cost impact to the system. MSIA opposes this proposal. No change.
HB 143 / Etchart / R-BIL
This bill permits PAs to be treating physicians. The bill passed the House 98 – 0 this week and we are waiting for it to be assigned to a Senate Committee. MSIA supports this proposal. Business, PAs, Primary Care providers, insurers and AFL/CIO-MFT supported the bill in the House Committee. The only opponent was the Trial Lawyers Association. No change.
HB 197 / Nicastro / R-BIL
This bill addresses the Rainey Workers Comp Court decision (Nat'l Union-Rainey_2021MTWCC10.pdf) where the judge determined that even with a full duty release, the insurer had to go through a job analysis and 14 day notice before terminating TTD benefits. This bill passed the passed the House on 1/27, on a party-line vote and we are waiting for it to be assigned to a Senate Committee. MSIA supports this bill. No change.
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 Bus, Labor & Economic Affairs Committee 11-0 on 1/29. MSIA was the lead opponent on this bill. Importantly MSF was an informational witness – neither supporting nor opposing the bill, which carried some weight with the Committee members. The full Senate has not considered this bill yet. No change.
SB 202 / L. Smith / D-HLN
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. MSIA supports this bill. This bill has not been assigned to a Senate Committee yet. No change.