Legislature(1997 - 1998)

01/22/1997 03:12 PM L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 41 - IMPAIRMENT RATING GUIDES FOR WORKERS COMP                           
 Number 1568                                                                   
 CHAIRMAN ROKEBERG announced House Bill 41 was next on the agenda,             
 "An Act relating to impairment rating AMA Guides used in evaluation           
 of certain workers' compensation claims."  Chairman Rokeberg                  
 indicated he was the sponsor of the bill and stated, "This                    
 seemingly is a very simple bill.  It was introduced two years ago             
 in the first session of the Nineteenth Legislature by                         
 Representative Bettye Davis and I signed on immediately as a                  
 cosponsor of the bill.  The -- and one reason I was aware of that             
 the people and the underwriters in the workers' comp insurance                
 business were desirous of having legislation to make immediate                
 adoption of the American Medical Association Impairment Guide.  And           
 the bill it did -- it took two years to wind its way through the              
 legislature and during which time, and if I - perhaps Mr. Grossi              
 later can explain the exact time frame -- and one of the most                 
 urgent portions of the former bill was the adoption of the guide,             
 but it did go through the regulatory process that took almost two             
 years to get it adopted.  So the urgency of the bill is not with us           
 now because the latest edition has been adopted by regulation, but            
 the purpose and intention of the bill is to make - which is part of           
 the older bill - is to make this an automatic procedure in the                
 future, thereby, also saving the state the expense of going through           
 the Administrative Procedures Act and adopting the whole enchilada            
 in terms of regulation."                                                      
 Number 1921                                                                   
 CHAIRMAN ROKEBERG stated, "One issue that came up was the original            
 bill had a 60-day window and after testimony in the HESS (Health,             
 Education and Social Services) Committee last year, we did adopt              
 the 90-day time frame.  So at the last hour, it was brought to our            
 attention that there may be some corrective things done to it.                
 Before I go any further, we'll ask for some testimony from the                
 folks that have signed in and I would ask the Mr. Paul Grossi lead            
 off the testimony."                                                           
 PAUL GROSSI, Director, Division of Workers' Compensation,                     
 Department of Labor, explained  permanent partial impairment and              
 how it fits into HB 41.  He gave the example of a injured worker,             
 deemed disabled/medically unstable, and receiving temporary total             
 disability benefits.  The employee will receive those benefits                
 until he or she becomes medically stable, at which time the                   
 employee has a permanent physical impairment.  The employee is then           
 rated and either released to go back to work receiving a lump sum             
 based on the permanent partial impairment rating or they may have             
 to go back to training.  The DOL is required by Section 1, AS                 
 23.30.190 as it currently exists to use the AMA Guides.  The                  
 problem the DOL encounters is the AMA Guides are published as                 
 changes occur in the science.  The way HB 41 exists now requires              
 the DOL to pass a regulation before they can use the next edition.            
 The intent of this amendment is to allow the DOL to use the newly             
 published AMA Guides without promulgation of a regulation.  The               
 Department of Law has informed the DOL that there are problems with           
 the way the amendment is written.  Mr. Grossi stated that the DOL,            
 and the Workers' Compensation Board, support the amendment to HB 41           
 because promulgation of a regulation can prevent the most current             
 science from being implemented in the rating of the impairments,              
 negatively affecting both the employee and the involved insurance             
 companies.  Mr. Grossi added this amendment would eliminate the               
 expense of having to issue a regulation every time the new AMA                
 Guide is issued.                                                              
 Number 1921                                                                   
 CHAIRMAN ROKEBERG asked what was the time frame for adoption the              
 MR. GROSSI stated a year and a half.                                          
 CHAIRMAN ROKEBERG indicated the latest AMA Guide was published                
 January of 1995 and the regulation was adopted in April of 1996.              
 The time delay of the regulatory process caused many physicians and           
 other users of the AMA Guides to not have access to the AMA Guides.           
 MR. GROSSI stated that when the AMA issues a new edition they stop            
 publishing the previous edition.  There was a period of time                  
 because of the delay in regulation when users did not have access             
 to the AMA Guides.                                                            
 Number 1993                                                                   
 REPRESENTATIVE COWDERY asked if there had been any objections to HB
 MR. GROSSI replied that there was testimony by Alaska Public                  
 Interest Group (AKPIRG) but it was not against the automatic                  
 adoption, it was over the use of the permanent partial impairment             
 as a system.                                                                  
 Number 2046                                                                   
 REPRESENTATIVE TOM BRICE asked if there were any changes to the AMA           
 Guide by the State in regards to permanent partial impairment.                
 MR. GROSSI replied that there are no additional changes, besides              
 the change to use the most recent edition of the AMA Guide.                   
 REPRESENTATIVE BRICE asked if within the contents of the most                 
 recent edition  has there ever been a need to issue changes.                  
 MR. GROSSI  replied no and added that it is the opinion of everyone           
 he has talked to doctors, insurance agencies, workers' compensation           
 attorneys and the Workers' Compensation Board that the sooner the             
 use of the most recent AMA Guide can be implemented the better off            
 everyone will be.  The DOL supports the legislation that will bring           
 about that change.                                                            
 Number 2107                                                                   
 REPRESENTATIVE HUDSON asked if the Department of Law had a problem            
 with the regulation.                                                          
 MR. GROSSI answered the Department of Law has a technical problem             
 with determining the exact date the publication would be in effect.           
 Number 2176                                                                   
 CHAIRMAN ROKEBERG indicated it was the intention of the chair to              
 move HB 41 today and asked Crystal Smith, Legal Administrator, to             
 talk about the Department of Law's technical problem with the                 
 CRYSTAL SMITH, Legal Administrator, Office of the Attorney General,           
 Department of Law, stated the Department did not notice the problem           
 when HB 41  was reviewed last session.  She feels there needs to be           
 a process to establish the date that the new AMA Guides would be              
 adopted.  House Bill 41 currently states that they need to be in              
 effect within 90 days.  This gives the interpretation that the DOL            
 still needs to go through the regulation process to establish the             
 effective date.  The Department of Law is suggesting a process of             
 setting a date, that would eliminate the regulatory process.  Such            
 as, issuing a specific time for a board meeting after the new AMA             
 Guides were published to determine when they would adopt the new              
 rating standards.                                                             
 Number 2272                                                                   
 DEBRA BEHR, Assistant Attorney General, Legislation and Regulation            
 Section, Civil Division, Department of Law, stated HB 41 does not             
 accomplish the full goal of the committee to have the AMA Guides              
 come in effect without having to go through the regulation process.           
 House Bill 41 currently states that the board is to begin using the           
 new AMA Guides within a 90-day period, which could be any day                 
 within those 90 days.  Ms. Behr believes the public has a right to            
 know what the date is and should be involved in the process of when           
 to start applying the new AMA Guide.  She stated the AMA Guide                
 effects the public's rights and responsibilities, for example an              
 employee may receive a better outcome under the old or new AMA                
 Guide.  The amendment would require the board to hold a meeting               
 declaring the new AMA Guide's effective date.  The Department would           
 issue a press release to notify the public and also include the               
 date in the Department's bulletin to notify the employees involved            
 in the Workers' Compensation System that the new AMA Guide is in              
 effect.   The last sentence of the amendment states that there does           
 not have to have a regulation to issue and effective date.  Ms.               
 Behr anticipated the board could issue the date at a regularly                
 scheduled meeting, a telephonic meeting, or hold a special meeting.           
 She addressed the option of issuing a firm date, for example 90               
 days from X, except that the AMA does not have a firm date from               
 which to count those 90 days.  This can cause debate on when those            
 90 days start.  The amendment the Department of Law is suggesting             
 will accomplish the goal with minimum cost.                                   
 Number 2378                                                                   
 REPRESENTATIVE BRICE stated that he thought the AMA would have a              
 specific publishing date.                                                     
 MS. BEHR responded that most publications give a month and a year             
 but not a specific date with the month.                                       
 REPRESENTATIVE BRICE asked if the publishing company would a have             
 a more specific date.                                                         
 MS. BEHR said then there is ambiguity as to whether published means           
 published in the state of Alaska, or when the printer received the            
 document, creating further problems.  The most direct way would be            
 to allow the board to meet, taking in the concerns of the public              
 and setting a date that takes in the concerns of the State of                 
 Number 2441                                                                   
 CHAIRMAN ROKEBERG stated that there was some concern that the board           
 could set a date that was after the 90-day period.  He questioned             
 if the language in AS 23.10.190 (b) was strong enough to prevent              
 that situation.                                                               
 Number 2454                                                                   
 MS. BEHR felt that in the circumstance of litigation, a court would           
 have to conclude that the board would have to set the date within             
 90 days.  However, she does not have an objection if the committee            
 would like to do a technical amendment to include the 90 days in              
 both places of the amendment.                                                 
 TAPE 97-1, SIDE B                                                             
 Number 001                                                                    
 CHAIRMAN ROKEBERG suggested language stating the new AMA Guide is             
 to be adopted precisely 90 days after publication. He asked Mike              
 Ford, Attorney for Legislative Legal Affairs and drafter of HB 41,            
 to give his opinion on the statutory draftsmanship of the amendment           
 to this issue.                                                                
 MIKE FORD, Attorney, Legislative and Research Services, Legislative           
 Affairs Agency, believes there are two options: either craft a                
 mechanism in statute to fix a set day as to when the new edition              
 would take effect or allow the board to set a day by giving the               
 board parameters.  He stated the problem with fixing a date is, as            
 the legal department discussed, identifying the date of                       
 publication. However, the option of giving the board parameters               
 would still require a guideline to set those parameters.                      
 CHAIRMAN ROKEBERG believed AS 23.30.190 (d) set the parameters for            
 the board.  He asked Mr. Ford if he had any suggestions that would            
 further clarify (d) but leaving the language alone in AS 23.30.190            
 (b).  Chairman Rokeberg felt that the language in AS 23.30.190 (b)            
 gives the board the flexibility to meet within the 90 days and                
 presumably the board would meet and set the date inside those 90              
 Number 100                                                                    
 MR. FORD felt in order to be absolutely certain, the 90-day                   
 requirement should be crafted on to AS 23.30.190 (d) making it                
 clear that the board has to act within a certain period.  However,            
 in doing this, the problem still exists in how that period would be           
 measured.  He feels the board needs a more precise parameter of               
 when to act.                                                                  
 CHAIRMAN ROKEBERG asked Mr. Ford to suggest parameters for the                
 setting of a date.                                                            
 MR. FORD asked if there was a month of publication.                           
 Number 157                                                                    
 MR. GROSSI passed around the AMA Guide which contained a month but            
 not an exact date of publication.                                             
 REPRESENTATIVE BRICE asked if the DOL acknowledges a specific date            
 when they receive the AMA Guide, as most official agencies stamp              
 the date of receipt on all in-coming mail.                                    
 MR. GROSSI stated that the DOL receives advance notice from the AMA           
 of the new edition for ordering purposes.                                     
 REPRESENTATIVE RYAN stated that publishers may vary in their                  
 particular time of publication and they do not usually do not                 
 usually distribute the publications.  A distribution company will             
 list a date that the publication will be available for distribution           
 or sale.  Representative Ryan felt the distribution date could be             
 used as a benchmark.                                                          
 Number 240                                                                    
 REPRESENTATIVE JERRY SANDERS asked if the 90 days could be started            
 from the last day of the month of publication.                                
 MR. FORD suggested that the board could set the day that the new              
 AMA Guide becomes effective, and require the board to act within a            
 certain period.  If the month is ascertainable it could read "not             
 later than 90 days after the last day of the month of publication."           
 That would allow the board to take public testimony in case they              
 had a conflict with a particular day.  Mr. Ford stated he could               
 prepare the wording.                                                          
 CHAIRMAN ROKEBERG stated he would like to adopt it as a conceptual            
 amendment and then provide for a committee substitute.                        
 Number 295                                                                    
 REPRESENTATIVE HUDSON made a motion adopt the amendment.                      
 CHAIRMAN ROKEBERG upon hearing no objection, it was so ordered.  He           
 stated it would be called Amendment 1.                                        
 MR. FORD suggested that Section 1, AS 23.30.190, be dropped and the           
 amended version of Section 2, AS 23.30.190, including Amendment 1,            
 be used as the only section of HB 41.  Mr. Ford stated that without           
 doing this, HB 41 would require all determinations to be made under           
 the most recent published edition, creating a period the most                 
 recently published edition would not be in effect because the board           
 still has to act.  The replacement HB 41 with the amended language            
 from the Department of Law, with Amendment 1 would accomplish the             
 committee's goal.                                                             
 Number 363                                                                    
 CHAIRMEN ROKEBERG asked Mr. Ford to draft an amendment to the                 
 amendment with the 90-day language in front of the committee in               
 order to move HB 41.                                                          
 MR. FORD stated on page 1, lines 4 through 13 be deleted and insert           
 the amendment, to now be Section 1, AS 23.30.190 with the new (d),            
 after edition in the first sentence, "the meeting required under              
 the subsection shall be held not later than 90 days after the last            
 day of the month of publication.                                              
 Number 455                                                                    
 MS. SMITH stated that it was not that the board meeting had to be             
 within 90 days, but the effective date was to be within 90 days.              
 The board meeting could actually be held prior to the last day of             
 the month of publication.                                                     
 MR. GROSSI stated that it depended on when the DOL received notice            
 from the AMA, it may be that a meeting could be held prior to the             
 effective date.                                                               
 MR. FORD stated that there are two time frames: when the board                
 meets and the period within which the board has to select an                  
 effective date.                                                               
 MS. SMITH suggested to tighten up the 90-day language for the time            
 frame of the board meeting.                                                   
 Number 510                                                                    
 CHAIRMAN ROKEBERG stated it to be the intention of the Chair that             
 both the meeting and the selection of the date occur within 90                
 days.  He said, "With the indulgence of the committee and with the            
 great faith in our legal counsel's ability to wordsmith it and if             
 the Department of Law and the DOL agree to this conceptual                    
 amendment (shaking heads yes) with these additions we move the                
 amendment to the amendment."                                                  
 Number 572                                                                    
 REPRESENTATIVE COWDERY made a motion to adopt the amendment to                
 Amendment 1.                                                                  
 CHAIRMAN ROKEBERG there being no objection, it was so ordered.                
 REPRESENTATIVE HUDSON stated the committee has HB 41, as amended,             
 before them with some conceptual words missing as authorized by Mr.           
 Ford and the Department of Law.  He made a motion to move HB 41, as           
 amended, out of committee with individual recommendations.                    
 Number 593                                                                    
 CHAIRMAN ROKEBERG there being no objection, CSHB 41(L&C) moved out            
 of the House Labor and Commerce Committee.                                    

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