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MONTANA SELF INSURERS' ASSOCIATION

MSIA Update / Leg. Week 8

Medicaid Expansion Passes Senate – On to the Gov’s Desk 

Transmittal Date Action!

  • SB 295 – Choice of Provider - Fails on Senate Floor
  • SB 308 – Eliminate the Cap on Benefits – Amendment?
  • HB 552 – PTSD Coverage for First Responders
  • SB 345 – Eliminate Treating Provider Deference & Make IMEs Easier - Sen Bus & Labor 2/28
  • SB 346 – Limit DOLI Benefit Awards & Clarify Reservation of Rights Medical Benefits
  • HB 197 – Overturn Rainey – Passes Senate Committee
  • SB 338 – Guardian ad Litem – Passes Committee
  • SB 291 – Annual Update to Lodging Values for Wages – Fails
  • SB 293 – Require Disclosure of Policy Limits Prior to Litigation – Fails
  • HB 516 – Transfer WC Court to Judiciary – Passes Committee
  • HB 428 – Dept Clean-Up Bill - Passes House
  • HB 727 – Plan 2 & 3 Competition Measures – House Bus & Labor 3/1
  • HB 805 – Terminate Benefits for Illegal Aliens – House Bus & Labor 3/3

Medicaid Expansion Passes Senate – On to the Gov’s Desk

HB 245 (Buttrey R-GTF), the Medicaid Expansion extension (actually deleting the sunset date) passed its’ last legislative hurdle Thursday 2/27 when the Senate passed it 30 – 20. The bill now goes to the Governor who has indicated support for it. Now, what are the feds going to do?

Transmittal Date Action!

The hits just keep on coming!

On Monday, the Senate Business & Labor passed SB 295 – the perennial Choice of Physician bill 10-2 to the floor. This was the first time this proposal passed any committee since we enacted the current law in 2011. We were pretty devastated and started to make plans to stop the bill in the House. But before we get there, we still have a shot on the Senate floor. However, with that kind of committee vote, we were not particularly optimistic. MSIA assisted in having a letter presented to each member of the Senate, signed by a broad section of business including MSIA and members MCCF, MSGIA and NorthWestern Energy, opposing the bill. It apparently had an effect as the bill failed on the Senate floor on Wednesday, 22-28. Four of the committee members flipped their votes.

So, what happened? We’re not likely to know for a fact for some time. However, we can speculate that this bill – one of the most important bills to the Dems (and us!!) in workers’ compensation – likely got caught in the Senate dysfunction. The Senate Business & Labor Committee now has four of ‘The Nine’ Senate majority members. Last week we reported with the Dem minority support, ‘The Nine’ moved bills to committees and changed some Committee membership. The four of the nine teamed up with two conservative committee members to move the bill to the floor. They all teamed up to vote with the Dems against the two steady business votes on the Committee (the Chair and one other). The tally on the floor indicates we still lost four majority votes – three of the conservatives and a moderate Republican.

We’re speculating here – because we just don’t know yet – but this could have been a message to Senate Leadership, that strange things can, and will happen, absent a more conciliatory approach from them. I think Leadership had already gotten the message as all sorts of bills started showing up on Senate Committee agendas – to the point they are starting meetings at 7a and Committees are now meeting six days a week.

Bills are being heard, testimony is being limited because of time and bills are being voted on faster than you can say ‘speeding bullet.’ Transmittal Day is March 7 – this is the day by which bills must be through their originating chamber. If they are not through – they are dead-ish.

The first rule of politics is that it is the art of the possible. The second rule is that the legislature makes the rules, they can change the rules.

Most bills that do not pass their originating chamber by Transmittal day – this year March 7 – are dead-ish. If the bill needs to see the light of day in the other chamber, there are still ways that can happen. Thus, while technically dead – they really are just not moving much. They’re not dead enough.

Even so, Transmittal day is a big deal – there has to be a good reason for leadership in either house to move a bill that did not make the transmittal deadline. As well, revenue and appropriation bills (budget items) have different transmittal dates. A bill that fails to make it through the first Transmittal date, could suddenly be amended to include a nominal licensing fee – and suddenly, it’s a revenue bill! Revenue bills Transmittal day is 4/4 and Appropriation bills Transmittal day is 4/7.

The best rule of thumb is to assume that bills are not dead enough - - until the day after session ends.

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. The bill passed committee 10-2 on 2/24 and failed on the Senate floor 22-28 on 2/26. MSIA was one of the lead opponents on this bill and helped with a letter placed on every Senate desk opposing the bill. 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. 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. 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 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 House Bus & Labor committee on 2/26. An amendment to clarify the definition of ‘first responders’, usage of the DSM-5 and an effective date was added on 2/28 and the bill passed committee 15-5 today. While the amendment improves the technical aspects of the bill we cannot support it. The Governor’s office does not oppose this bill.  MSIA was the lead opponent to 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. The bill was heard in Sen Bus & Labor on 2/28. 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. Interestingly, there was no opponents testimony.


SB 346 / Hertz / R-Polson

This bill is another MSIA requested bill to limit the ability of the Department of Labor to order the continuation of benefits and to clarify that benefits provided under the medical benefits reservation of rights cannot include indemnity benefits.  This bill will be heard in Sen Bus & Labor on 3/3. The Governor’s office will oppose this bill. 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. The bill passed Sen Bus & Labor 12-0 on 2/24. MSIA testified in favor and supports the bill. Because it has been amended in the second chamber, it will have to go back to the House for concurrence. We do not anticipate an issue with this bill passing and becoming law.


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 passed 12-0. MSIA supports this bill. We do not anticipate an issue with this bill passing and becoming law.

 

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. The bill failed in Sen Bus &Labor on 2/24 and is dead. MSIA was one of the lead opponents to this 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. The bill failed in Sen Bus & Labor on 2/24 and is dead. MSIA opposed the 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. It has been transmitted to House Appropriations for further consideration. MSIA supports this bill.


HB 143 / Etchart / R-BIL

This bill permits PAs to be treating physicians. The bill passed the House 98 – 0. 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. MSIA supports this bill. We do not anticipate any issues with this passing and becoming law.


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 98–0 on 2/25. MSIA supports this bill. We do not anticipate any issues with this passing and becoming law.

 

 HB 727 / Nicol / R-BIL

This is the perennial ‘kill MSF’ bill. The bill requires an annual measure of competition of Plan 2 and Plan 3 carriers and if none is found to exist, after a hearing, the Commissioner of Securities and Insurance shall take action to promote new insurers to the market, limit large mergers of insurers, promote consumer education and prohibit or limit by at least 50% the premium written by producer agencies to MSF. The bill is set for hearing in House Bus & Labor on 3/1. MSIA will not take a position on this bill.


HB 805 / Nicol / R-BIL

This bill permits termination of benefits for illegal aliens and for legal aliens who leave the country while collecting workers’ compensation benefits (even if they are legally required to do so. The bill is set for hearing in House Bus & Labor on 3/3. MSIA will not take a position on this bill.