MONTANA SELF INSURERS' ASSOCIATION
MSIA Update / Leg. Week 7
- Senate Still Fighting Itself
- Medicaid Expansion Passes Senate Committee
In the continuation of the strange Senate proceedings this year, they met in an extended floor session on Monday to ultimately refer bills to committees and to change some committee membership. This is just weird – I don’t know how else to describe it. While one would not normally think so, given that almost everything that has happened this year in the Senate we never thought would happen, it’s possible the dysfunction can have an impact on some of our issues.
The same group of nine Republican Senators again teamed up with the Democrats to require some bills be referred to committee and boosted their membership on some committees. Most notably, they changed the committee make up on the Senate Rules and Finance and Claims Committee. For our purposes – they also added a member to the Senate Business & Labor Committee – which may change the dynamic on that Committee. Each vote was the same 27 – 23 that has marked any significant action in the Senate this year – that is 9 majority members teaming with the 18 Democrats to move rules, committee assignments and now, bills. There is no question the Senate has to make up for lost time, so far this session, but this is – well I don’t know how to describe it - weird.
Senator Jason Ellsworth (R-Hamilton) one of the leaders of “The Nine” has been appointed to the Senate Business & Labor Committee. In any other year, I would be pleased to work with him as he has provided sound business basis for the positions I have seen him take. What I don’t know, and may not yet be known, is what political price will be paid to the minority for such a unified position? Will they require specific bills move or pass? Does the addition of some members of “The Nine” change the dynamic of any individual committee? We just don’t know yet.
The Medicaid Expansion bill (HB 245 – Buttrey R-GTF) passed the Senate Public Health Committee, with Senate Majority Leader Tom McGillvray (R-BIL) an opponent of “The Nine” casting the deciding vote in what is seen as a concession on one of the most important issues this year. The bill was then referred to the Senate Finance and Claims Committee.
Here’s this week’s run-down of legislation we’re interested in for a full list of bills of interest and more comments – see the attached spreadsheet. The more important bills/proposals are closer to the top:
SB 295 / A. Olsen / D-MSO
This is the perennial request to change our system back to employee choice of provider, versus the current employer choice of provider. When we made the change in 2011 to the current law, NCCI valued the change as an immediate 8.4% decrease in loss costs, the day the law became effective. As well, since the reform law has been in place, durations are down, physician, pharmacy and hospital costs are down – and in fact every objective, quantifiable indication is that our WC system is working better, since this law took effect. MSIA identified this, as well as the differences in WC and other coverages. 23 states have employer choice, and it is appropriate to retain it in our system. MSIA opposes this bill.
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. MSIAopposes this bill.
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. MSIA supports this bill.
SB 346 / Hertz / R-Polson
This bill is another MSIA requested bill to limit the ability of the Department of Labor to automatically order the continuation of benefits, to clarify that benefits provided under the medical benefits reservation of rights cannot include indemnity benefits, and to permit termination of benefits when the injured worker refuses to cooperate with a designated treating physician or nurse case manager. This bill has been set for hearing in Senate Bus & Labor Committee on 2/28. MSIA supports this bill.
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 supports the bill as well. The only opposition, after the amendment, was from the plaintiff attorneys. MSIA testified in favor and supports the bill.
SB 293 / A. Olsen / D-MSO
This bill was heard in Senate Business and Labor on Wednesday 2/19 and would require insurance carriers provide information on the policy limits to claimants, prior to litigation. MSIA testified against this bill and opposes the bill.
SB 291 / A. Olsen / D-MSO
This bill would put in statute that the lodging rates when lodging is considered part of the wages for benefit calculations, be updated annually. MSIA was the lead opponent arguing that the lodging rates are reviewed annually by the Department and changed when there is an increase of 3% or so. Montana is somewhat unique in providing that lodging be included as part of wages, and mandating it be an annual update would mean that even a minimal increase would require another update to the tools needed to calculate benefits. MSIA opposes this bill.
HB 552 / 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. The bill is set for hearing in House Bus & Labor committee on 2/26. MSIA opposes this bill.
LC 3288 / Neumann / D-BZN
Similar to HB 552 above, this bill provides for the opportunity for first responders to have WC coverage for PTSD claims. MSIA opposes this proposal.
SB 338 / Hertz / R-Polson
This proposal looks to be a duplicate of SB 202, below, with a majority member sponsor. The bill is set for hearing in the Senate Bus & Labor Committee on 2/26. MSIA supports this proposal.
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. This bill will be heard in Sen Bus & Labor on 2/25. MSIA supports this bill.
HB 516 / Walsh / R-Twin Bridges
This bill would move the WC Court from the Department of Labor to the Judiciary. MSIA does not have a position on this bill at this time. The bill is set for hearing in House Bus & Labor on 2/25.
HB 143 / Etchart / R-BIL
This bill permits PAs to be treating physicians. The bill passed the House 98 – 0. 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. The bill has been assigned to Sen Public Health Committee.
HB 367 / 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. 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. MSIA supports this bill.
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. MSIA was the lead opponent on this bill.
HB 428 / 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. This bill passed House Bus & Labor 20 – 0 on 2/19. MSIA supports this bill.
SB 295 - Choice of Physician Passes Senate Committee
For the first time since 2011, the Choice of Physician bill passed a committee. Today, the Senate Business & Labor Committee passed the bill 10 – 2 with only the Chair (Noland R-Bigfork) and Phelan (R-Glendive) voting against the bill. Six Republicans, Trebas (R-GTF), Ellsworth (R-Hamilton), Gillespie (R- Ethridge), Hunter (R-Glasgow), Loge (R-St. Regis) and Zolinkov (R-BIL) voted in favor of the bill.
I think there was an odd coalition of conservative Republicans who are generally in favor of freedom of choice, and the moderate Republicans with the Democrats. I expect the bill to pass the Senate, and we will have to stop it in the House – where a similar coalition could go the wrong way.
This section of the law was responsible for just over one third of the savings associated with HB 334 (2011) – 8.5% of the 22.4% total savings that took place the day that law became enacted. Of course since then, we have seen every objective, quantifiable measure of the Montana WC system improve. This bill would change that direction and system costs will increase.
- Durations are down – meaning people are recovering faster and returning to their families, lives and work – faster;
- Physician total spend is down;
- Hospital total spend is down;
- Pharmacy total spend is down;
- WC costs borne by employers is down.
Of course, following a national trend as well, frequency is down.
Transmittal date – the date by which bills have to be through their originating chamber is next week. There will be a push to move this bill fast.
MSIA is putting together a communication to the Senate members to try to at least slow the bill down, if not kill it on the Senate floor. We will be joined by the Plan 2 & 3 carriers as well as a business coalition of just about everyone we can think of.
If you know your Senator, please reach out to them to vote against SB 295 when it comes to the floor. We will be taking more direct action as well, in the House.