Legislature(1995 - 1996)
01/23/1996 03:00 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 60 - IMPAIRMENT RATING GUIDES FOR WORKERS COMP Number 740 CO-CHAIR BUNDE said HB 60 was sponsored by Representative Bettye Davis and asked Jonathan Sperber to present the bill. JONATHAN SPERBER, Legislative Aide to Representative Bettye Davis, said that House Bill 60 would provide that the Department of Labor use the most recently published edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, including the most recent supplementary materials in making impairment rating determinations. He said this legislation is supported by the medical community, the Department of Labor and more specifically, the Workers' Compensation office. Mr. Sperber referenced the Department of Labor's position paper available in committee packets, which stated in part, "Allowing the use of the current edition of the publication in effect at the time of the impairment rating will reduce the need for Board hearings and ensure that those applicants who meet current requirements will qualify for benefits. The older version of the AMA guides do not include some injury types and do not reflect current thinking on degrees of injury given new medical technology and prognosis for recovery." He directed the committee's attention to a letter in their packet from Dr. Roy Schwarz who stated the AMA's position was clearly stated on page 5 of the Guides 4th edition published in June 1993. That position being "The American Medical Association strongly discourages the use of any but the most recent edition of the Guides, because the information in it would not be based on the most recent and up-to-date material." Dr. Schwarz went on to say in his letter that the position of the AMA quoted above reflects advice that the AMA's staff provided in May 1992 to the staff of each state medical society. Also, it is AMA's practice to sell or provide only the most recent Guides edition. MR. SPERBER read the following statement from Representative B. Davis' sponsor statement: "There have been significant changes in diagnostic and evaluation procedures over the six years. One of the most important, that the Alaska Guide does not address is how the injury affects the patient's daily activity." He noted that Alaska regulations currently specify that the 1988 AMA guidelines were to be used, although there has been a subsequent edition published. Number 910 CO-CHAIR TOOHEY inquired as to the cost of the Guides, including the supplemental, and how often it is published. MR. SPERBER said each new edition costs approximately $75. The Division of Workers' Compensation requires three copies of the latest edition. The last two editions published were the 3rd in 1988 and the 4th edition in 1993. He wasn't sure how much time elapsed between the 1st and 2nd editions, and the 2nd and 3rd editions, but noted there was at least a five year period between the publication of the 3rd and 4th editions. Mr. Sperber said he would defer the question regarding the cost of supplementary materials to the representative from the Department of Labor. CO-CHAIR BUNDE commented there were individuals in Anchorage waiting to testify via teleconference. Number 978 TOBY STEINBERGER, Assistant Attorney General, Governmental Affairs Section, Department of Law, said at the request of Paul Grossi, Director, Worker's Compensation Division, she was available to answer questions. CO-CHAIR BUNDE said the regulations require the use of an outdated version of the AMA Guide, but apparently there is a need for a statutory change in order to use the current one. He asked Ms. Steinberger if this legislation should reflect the ability to update without having to come back for statutory changes. Number 1010 MS. STEINBERGER responded it is the Department of Law's position that under the current version of the statute when the new edition is enforced or used, public notice has to be given. She commented she is currently reviewing a proposed regulation which has already been publicly noticed, adopting the 4th edition, 1994. After her review, the proposed regulation will be sent to Deborah Behr, Assistant Attorney General in the Legislation & Regulations Section of the Department of Law. This proposed bill may eliminate the need to adopt a new regulation each time there is a new edition of the Guide. CO-CHAIR BUNDE said as he understood it, what was being requested in the legislation could actually be accomplished now by statute, but they were looking for a more efficient process. MS. STEINBERGER said she thought the department, through Representative B. Davis, was asking for the more efficient process, but reiterated they are currently reviewing a proposed regulation to adopt the 1994 edition. CO-CHAIR TOOHEY referred to the supplementary materials and asked if the supplemental was updated every year and if they were made available to the medical community and the public. She expressed concern with a regulation like this being implemented and asked if the hands of the Workers' Compensation Division would be tied if we were not able to get the published edition of the 1994 edition or the 1995 edition or the supplemental material. MS. STEINBERGER responded the proposed regulations adopt the 1994 edition and she is not familiar with the supplementary materials. Number 1129 MR. SPERBER said it was his understanding in terms of the regulatory process, that under the current Department of Law drafting procedures, a regulation could not be promulgated that would have similar type wording as HB 60, but rather the far slower and more cumbersome process would have to be followed. He said in this case, about eight or nine months had now elapsed since the request was placed with the Department of Labor to draft a regulation which required use of the now current 4th edition of the guidelines. He thought that Co-Chair Bunde was technically correct in that a regulation could address what is being addressed by HB 60, however, doing so by regulation would be a far slower, more awkward, inefficient process. CO-CHAIR BUNDE commented it is somewhat frightening to think that regulations take longer than statutory changes. Number 1203 GEOFF BULLOCK, Lobbyist, Alaska State Medical Association, testified the Alaska State Medical Association supports this legislation. The association would like to see the updated verbiage used in the statutes rather than through the regulation process, in order to make it clearer. He noted he had just received the copyright dates of the recent editions, which showed there is anywhere from a few years to many years lapse between editions. REPRESENTATIVE ROKEBERG asked for verification of the fact there were representatives of the industry, workmen's compensation insurance businesses, that testified in support of this bill before the House Labor & Commerce last year. He asked Mr. Bullock if that would be a correct statement. MR. BULLOCK responded he had not been at the hearing last year, but noted that doctors at the state level seemed very supportive of it. Number 1273 GARREY PESKA, Lobbyist, Alaska State Hospital & Nursing Home Association, testified the Alaska State Hospital & Nursing Home Association supports this legislation. The association would like to see the most current Guideline be effective, rather than having to go through the cumbersome process of changing regulations every time there is a change in the Guidelines. Number 1309 PAUL GROSSI, Director, Division of Workers' Compensation, Department of Labor, testified the Department of Labor supports this legislation primarily because they view it as a way of streamlining the regulatory process. They think it is a way to get an automatic adoption of the most current AMA Guides. The department is required to do this anyway under the current law because they are required to use the AMA Guides. The problem is it requires a regulatory change every time there is a change in the AMA Guide. While the regulatory process is long and cumbersome, he doesn't know that it takes as long as a statutory change, but the fact is once they have the statutory change, it will be there for the duration. He pointed out the division had proposed regulations to make it the most current Guide, but that process was started last August. Mr. Grossi said he talked with representatives of the AMA Guide last August and they indicated it would probably be another two years before a new Guide would be in effect. Number 1411 REPRESENTATIVE ROBINSON asked Mr. Grossi if he thought "At the time of rating" or similar language should be inserted at the beginning on subsection (b) on line 5. MR. GROSSI said he thought the current language would work fine. He noted they could pass a regulation for an effective date which would provide some lag time after the publishing, so the medical community, insurance community, employers' groups, employees' representatives, and the division could get copies of the most recent edition. There would probably have to be a little bit of lag time to allow that to occur. REPRESENTATIVE ROBINSON verified that Mr. Grossi didn't feel there was a need for that language. She understood there were people who thought this should be added. REPRESENTATIVE B. DAVIS interjected it was her understanding based on the information her staff received from Representative Robinson's office that the request for the language change originated from the Department of Labor. REPRESENTATIVE ROBINSON confirmed that. REPRESENTATIVE B. DAVIS said if the representative from the Department of Labor had stated the language change is not needed, then it is not needed. CO-CHAIR BUNDE asked Mr. Grossi to do some research on the issue and get back to the committee. MR. GROSSI replied the Department of Labor would do that. Number 1524 REPRESENTATIVE VEZEY noted there would be a lag time between the publication of the new edition and the time it would be available in offices in which the department would not be able to effect any work. MR. GROSSI said he wasn't exactly sure how it would be done. One of the possibilities was to pass a regulation which stated that quarterly, by way of a bulletin, the division would publish a bulletin indicating the AMA Guides that would be in use during that quarter. He reiterated this was just one possibility. It would be simple in that it would require passing just one regulation and that regulation could be used until the law changed. REPRESENTATIVE VEZEY differed with Mr. Grossi in that a regulation that conflicts with statute is not enforceable. He commented he wasn't sure how to define "most recent published edition" and that it may not be considered effective until you can reasonably receive a copy of that edition. He emphasized there would be some lag time involved. MR. GROSSI said he agreed it would be difficult. If there was a rating that was occurring in a doctor's office on the day the new Guide was being published, there was no way they could possibly be using the most recent published edition. He said there would have to be a way to put it in effect and thought it would be relatively simple to just have a three month lag time. REPRESENTATIVE VEZEY said an automatic way of handling it would be to work with the material you have and if the effective date of the new material was after your termination, an adjustment could be made. CO-CHAIR BUNDE said he would like Mr. Grossi to address this lag time issue before the next hearing on the bill. CO-CHAIR TOOHEY questioned whether the difference would be that great. She said it didn't seem likely that technology was suddenly going to develop something in a certain area that would totally eliminate a person from workers' compensation. MR. GROSSI interjected it was the most current science at a given time and added that usually the changes are not dramatic. There may be new research that comes out, but it was usually incremental changes. CO-CHAIR BUNDE commented on the zero fiscal note and asked if we start using the new manual and it addresses how these definitions would affect a person's normal life, is that likely to introduce a large number of new clients into workers' compensation. MR. GROSSI said it wouldn't change the number of clients in workers' compensation. It would depend on the number of injuries that occur. If there was a permanent partial impairment that was ratable, then any given injured worker was entitled to a permanent partial impairment rating. CO-CHAIR BUNDE directed Mr. Grossi's attention to the sponsor statement which states the new guide would now address how the injury affects a patient's daily activity. He asked if Mr. Grossi didn't anticipate that would significantly increase the number of people on workers' compensation. MR. GROSSi said he didn't see how it could. The number of people on workers' comp is dependent on the number of injuries that occur. CO-CHAIR BUNDE clarified that it would be defining the injury differently. In other words, it wasn't defined as a workers' comp injury prior to the new definition, but now it was. MR. GROSSI didn't think it would have an effect. He said, "The only possibility would be if there is some new science that came out that would allow for a type of rating system that formerly they didn't have the knowledge to do that, then that could possibly happen." CO-CHAIR BUNDE asked Mr. Grossi to address this issue at the next hearing. MR. GROSSI said someone from the medical community would need to address that. Number 1844 REPRESENTATIVE ROKEBERG said he wanted to clarify the effect of the lag time. As he understood it, a physician would make a judgment on the rating and depending on which edition that physician is using, it could have an impact on the judgment of whether there was coverage or not. MR. GROSSI said it would depend. They would have to use a version of the AMA Guide and the rating would have to occur according to those guidelines. REPRESENTATIVE ROKEBERG said one could be out-of-date because of the mail, and that is why it was important for the timing to be precise. It could have an affect on a judgment which would result in a dispute over whether there was coverage or not based on the rating. MR. GROSSI said it was important that it be established and thought it could be done either through statute or regulation. it was possible to have a regulation that would allow for some period of lag time. He said it would need to be done that way to ensure that the ratings would be done systematically. REPRESENTATIVE ROKEBERG asked if Mr. Grossi wouldn't prefer to have a specific statutory date certain, to avoid having to publish a regulation. MR. GROSSI responded the department would be happy if they didn't have to adopt a regulation on this. CO-CHAIR BUNDE closed the meeting to public testimony. He reiterated the policy of the House HESS Committee to not pass bills out of committee on first hearing. REPRESENTATIVE ROBINSON reminded committee members the language had been changed from workmens' comp to workers' comp. CO-CHAIR BUNDE said this bill will be held in committee for an additional hearing.
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