Legislature(2005 - 2006)BUTROVICH 205
04/08/2005 08:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB130 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 140 | TELECONFERENCED | |
| + | SB 132 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 130 | TELECONFERENCED | |
| += | SB 128 | TELECONFERENCED | |
SB 130-WORKERS' COMPENSATION/ INSURANCE
8:09:30 AM
CHAIR RALPH SEEKINS reviewed the work from the previous day and
advised the committee members of the intended agenda. Several
proposed amendments were passed out.
8:16:32 AM
CHAIR SEEKINS informed Ms. Linda Hall of a proposal to freeze
both medical benefits and insurance premiums. He asked the
practical effect that would have.
MS. LINDA HALL, director, Division of Insurance, hesitated to be
an alarmist. However, she said if the premiums were frozen there
would be a market withdrawal.
8:19:08 AM
The practical effect would be employers would have no one to
obtain for coverage. A secondary effect would be the assigned
risk pool would fold. At that point it would mean the state
would have to relinquish the mandatory requirement for employers
to hold worker's compensation coverage or the state would have
to establish a state fund.
8:20:44 AM
CHAIR SEEKINS asked whether the state would have to subsidize
the fund.
MS. HALL replied somebody would.
CHAIR SEEKINS stated, "Assuming we could contain the cost by
freezing rates, we may have the same practical effect on the
premium."
MS. HALL responded correct. Premiums are reflective of costs.
8:22:03 AM
CHAIR SEEKINS announced the Alaska State Medical Association
brought three amendments for consideration.
Chair Seekins called a brief recess at 8:22:55 AM.
Chair Seekins reconvened the meeting at 8:27:08 AM.
CHAIR SEEKINS announced the primary goal is to consider the
amendments first. For the record the committee passed Amendments
1, 2, 3, & 4. The committee tabled Amendment 5.
8:28:27 AM
SENATOR HOLLIS FRENCH asked Mr. Lisanki the amount of claims
Amendment 5 would affect.
MR. LISANKI, director, Division of Worker's Compensation,
Department of Labor and Workforce Development (DOLWD), answered
the system has never been set up to make a distinction between
injuries. He could not give an answer to the question.
CHAIR SEEKINS asked Mr. Lisanki to comment on Amendment 6.
MR. LISANKI stood by his original comments. Treatment for
chronic intractable pain would be considered palliative care.
8:33:41 AM
SENATOR GENE THERRIAULT asked the difference between intractable
and debilitation.
8:34:31 AM
Mr. JIM JORDAN, executive director, Alaska State Medical
Association, understood "intractable" to mean unrelenting and
continuous.
CHAIR SEEKINS read the Webster's New World: "Hard to manage,
unruly, or stubborn."
8:35:54 AM
SENATOR FRENCH commented Amendment 7 should make certain that
the job dislocation benefit waiver works best when represented
by counsel.
CHAIR SEEKINS countered people are allowed to sign contracts
that affect their lives without representation.
8:37:46 AM
Senator Charlie Huggins joined the committee.
CHAIR SEEKINS asserted he did not want to restrict a person to
first talk to counsel.
SENATOR THERRIAULT asked Mr. Lisanki whether people currently
have counsel to help them make decisions.
MR. LISANKI answered there is currently no requirement that
someone consult an attorney before making a benefit decision.
8:40:55 AM
SENATOR FRENCH aired it was a one-time buyout for a permanent
impairment and the need for consulting an attorney was definite.
8:43:12 AM
MR. LISANKI clarified it was not a buy out of permanent partial
impairment. The permanent partial benefit would still be paid.
8:45:01 AM
SENATOR FRENCH commented Amendment 8 also relates to waiving
benefits. He expressed concern the waiver be reviewed by an
attorney or the Worker's Compensation Board.
8:49:18 AM
MR. LISANKI said the waiver was designed to be a lump sum
payment. Section 19 reflects a syntax change. It is relatively
new and was put in place by the Legislature in 2000.
8:52:26 AM
SENATOR THERRIAULT asked Mr. Lisanki to comment on Amendment 9.
8:54:20 AM
MR. LISANKI said Amendment 9 was redrafted because of redundant
language. Section 40 was changed to clarify compensatory damages
are awarded by a jury in a jury trial. They added the words "or
jury".
8:59:03 AM
MR. LISANKI commented Amendment 10 puts into statute what is
already happening. Since 1988 the benefit has been converted to
permanent partial impairment benefits. To avoid litigation, the
ad hoc committee recommended the language.
9:00:50 AM
SENATOR THERRIAULT sponsored Amendment 10.
SENATOR HUGGINS moved Amendment 5.
SENATOR FRENCH objected. He said the committee should be advised
the number of cases Amendment 5 would affect.
SENATOR THERRIAULT said Alaska couldn't afford to consider a
pre-existing injury under the worker's compensation benefits
system.
9:03:39 AM
SENATOR GUESS advised she would vote against Amendment 5 until
she learns more about the impact it would have.
Roll call proved the Amendment 5 passed 3-2 with Senators French
and Guess dissenting.
9:05:00 AM
SENATOR HUGGINS moved Amendment 6.
SENATOR GUESS introduced an amendment to Amendment 6.
AMENDMENT TO AMENDMENT 6
Page 2, Line 11, after "...treatments of a similar nature."
Insert:
"Limitations described in this subsection do not apply in the
event that the physician certifies that the treatment is needed
to treat chronic, intractable pain."
SENATOR THERRIAULT suggested changing the word "intractable" to
"debilitating."
SENATOR GUESS asked Mr. Lisanki to comment.
MR. LISANKI voiced it is a dilemma to define a term that allowed
for serious pain treatment.
9:08:23 AM
CHAIR SEEKINS said the intent is to allow a physician to find
new technologies to treat serious pain.
MR. LISANKI responded the provision is for palliative care of a
patient who is beyond recoverable treatment.
CHAIR SEEKINS conceded to change the word "intractable" to
"debilitating." Hearing no objection, Amendment 6 was adopted.
9:10:32 AM
SENATOR FRENCH moved Amendment 7. Hearing no objection, the
motion carried.
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A M E N D M E N T 7
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 130(L&C)
Page 11, line 8, following "AS 23.30.130":
Insert ";
(4) the administrator may not accept an election
to accept a job dislocation benefit by an employee who has
not signed a form, which conspicuously notes the benefit
being waived."
9:12:05 AM
Senator French moved Amendment 8.
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A M E N D M E N T 8
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 130(L&C)
Page 12, line 18, following "AS 23.30.130.":
Insert "The division may not accept a wavier executed by an
employee unless the waiver has been reviewed and approved by the
board."
SENATOR THERRIAULT objected for discussion. He asked Chair
Seekins whether this would mean that the Board has to approve
each waiver.
CHAIR SEEKINS said it would prescribe who would draft the form.
MR. LISANKI answered the form would be approved by the director,
the division would serve the notice, and the division would
receive the statement form. The operative phrase is "not
withstanding AS 23.30.012." That is the provision that requires
the Board to review and approve settlements. One of the two
would have to go.
9:14:48 AM
SENATOR FRENCH clarified the specific employee's waiver would
have to be approved.
SENATOR THERRIAULT maintained his objection.
Roll called proved Amendment 8 failed 4-1 with Senators Huggins,
Guess, Therriault, and Chair Seekins dissenting.
SENATOR THERRIAULT moved Amendment 9.
CHAIR SEEKINS objected for discussion. He voiced hesitation to
put compensatory and punitive damages into worker's compensation
law.
9:16:14 AM
SENATOR THERRIAULT asked the penalties that would be divined.
CHAIR SEEKINS speculated fines and jail terms. Punitive and
compensatory damages are an additional award used for pain and
suffering.
MR. LISANKI said the Board could order repayment of benefits
that were obtained fraudulently.
9:19:23 AM
SENATOR THERRIAULT proposed a conceptual amendment to Amendment
9, which would strike the word "punitive."
9:21:29 AM
CHAIR SEEKINS clarified the intent of the conceptual amendment
was to direct the drafter to ensure the statutes allow
compensatory damages but not punitive damages.
9:25:26 AM
Hearing no objections, the conceptual amendment to Amendment 9
was adopted. Amendment 9 was adopted.
SENATOR THERRIAULT moved Amendment 10. Hearing no objections,
the motion carried.
A M E N D M E N T 10
*Sec. 17. AS 23.30.041(k) is amended to read:
(k) Benefits related to the reemployment plan may not
extend past two years from the date of plan approval or
acceptance, whichever date occurs first, at which time the
benefits expire. If an employee reaches medical stability before
completion of the plan, temporary total disability benefits
shall cease and permanent impairment benefits shall then be paid
at the employee's temporary total disability rate. If the
employee's permanent impairment benefits are exhausted before
the completion or termination of the reemployment process
[PLAN], the employer shall provide compensation equal to 70
percent of the employee's spendable weekly wages, but not to
exceed 105 percent of the average weekly wage, until the
completion or termination of the process [PLAN], except that any
compensation paid under this subsection is reduced by wages
earned by the employee while participating in the process [PLAN]
to the extent that the wages earned, when combined with the
compensation paid under this subsection, exceed the employee's
temporary total disability rate. If permanent partial disability
or permanent partial impairment benefits have been paid in a
lump sum before the employee requested or was found eligible for
reemployment benefits, payment of benefits under this subsection
is suspended until permanent partial disability or permanent
partial impairment benefits would have ceased, had those
benefits been paid at the employee's temporary total disability
rate, notwithstanding the provisions of AS 23.30.155(j). A
permanent impairment benefit remaining unpaid upon the
completion or termination of the plan shall be paid to the
employee in a single lump sum. An employee may not be considered
permanently totally disabled so long as the employee is involved
in the rehabilitation process under this chapter. The fees of
the rehabilitation specialist or rehabilitation professional
shall be paid by the employer and may not be included in
determining the cost of the reemployment plan.
9:27:13 AM
SENATOR GUESS moved Amendment 11.
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A M E N D M E N T 11
OFFERED IN THE SENATE BY SENATOR GUESS
TO: CSSB 130(L&C)
Page 10, line 8:
Delete "15"
Insert "30 [15]"
Page 11, line 7, following "elected;":
Insert "except as provided in (4) of this subsection,"
Page 11, line 8, following "AS 23.30.130":
Insert ";
(4) an employee who elects to accept a job
dislocation benefit under (2) of this subsection may revoke that
election if the employee
(A) notifies the administrator in writing within
one year after the receipt of the job dislocation benefit
under (2) of this subsection, that the employee chooses
reemployment benefits; and
(B) refunds the entire job dislocation benefit
received, without interest"
Page 11, following line 19:
Insert a new bill section to read:
"* Sec. 18. AS 23.30.041(n) is amended to read:
(n) After the employee has elected to participate in
reemployment benefits, if the employer believes the
employee has not cooperated, the employer may terminate
reemployment benefits on the date of noncooperation.
Noncooperation means
(1) unreasonable failure to
(A) keep appointments;
(B) maintain passing grades;
(C) attend designated programs;
(D) maintain contact with the rehabilitation
specialist;
(E) cooperate with the rehabilitation
specialist in developing a reemployment plan and
participating in activities relating to
reemployability on a full-time basis;
(F) comply with the employee's
responsibilities outlined in the reemployment plan; or
(G) participate in any planned reemployment
activity as determined by the administrator; or
(2) failure to give written notice to the
employer of the employee's choice of rehabilitation
specialists within 30 [15] days after receiving notice of
eligibility for benefits from the administrator as required
by (g) of this section."
Renumber the following bill sections accordingly.
Page 27, line 11:
Delete "sec. 30"
Insert "sec. 31"
Page 27, line 12:
Delete "sec. 30"
Insert "sec. 31"
Page 28, line 10:
Delete "sec. 23"
Insert "sec. 24"
Page 28, line 14:
Delete "Section 49"
Insert "Section 50"
Page 28, line 15:
Delete "30, and 51"
Insert "31, and 52"
Page 28, line 16:
Delete "37, 46, and 50"
Insert "38, 47, and 51"
Page 28, line 21:
Delete "52 - 54"
Insert "53 - 55"
SENATOR THERRIAULT objected.
SENATOR GUESS said Amendment 11 would balance the new
dislocation benefit. It would allow people a little more time to
respond. It would also allow an injured worker one year to
change their mind and provide for the payback of the $5,000 in
exchange for retraining.
9:28:50 AM
MR. LISANKI commented up until 2000 the employee was allowed 10
days to respond and then it was expanded to 15 days. SB 130
provides one additional factor for the person to consider. It
would be administratively difficult for the Division of Worker's
Compensation and the insurance company to believe they have
something resolved but in actuality, it is not truly resolved.
He said he couldn't support the amendment.
MS. HALL agreed.
9:32:49 AM
SENATOR THERRIAULT asked Mr. Lisanki whether his concern was
based on the length of time or the mechanism for changing
options.
MR. LISANKI responded both. The mechanism would be completely
new. Ramifications would be hard to determine.
SENATOR THERRIAULT suggested the current system allows an
employee to try and go back to work even during treatment.
MR. LISANKI agreed. Entitlement to the benefit being given up is
premised on the ability to go back to the job.
9:34:42 AM
CHAIR SEEKINS said he has no objection to waiting 30 days.
SENATOR GUESS stated she contrived Amendment 11 in response to
the new benefit and the unknown impact. She asked Mr. Lisanki to
explain the reason for the job dislocation benefit.
9:37:27 AM
MR. LISANKI said reemployment benefits couldn't possibly be
constructed to individual cases. The job dislocation benefit
provides an option.
9:38:57 AM
SENATOR THERRIAULT moved to separate out the 30-day allowance
from Amendment 11. Hearing no objection, the motion carried.
CHAIR SEEKINS moved Amendment 11(a). Hearing no objections, the
motion carried.
9:40:36 AM
SENATOR GUESS moved Amendment 11(b).
SENATOR THERRIAULT objected. Roll call proved Amendment 11(b)
failed 3-2 with Senators Huggins, Therriault, and Chair Seekins
dissenting.
9:42:30 AM
CHAIR SEEKINS moved Amendment 12. Hearing no objections, the
motion carried.
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A M E N D M E N T 12
OFFERED IN THE SENATE
TO: CSSB 130(L&C)
Page 9, line 19, following "evaluation.":
Insert "If the company, firm, or other entity that employs
a rehabilitation specialist selected by the administrator to
perform an eligibility evaluation under this subsection is
performing any other work on the same workers' compensation
claim involving the injured employee, the administrator shall
select a different rehabilitation specialist."
Chair Seekins announced a brief recess at 9:44:57 AM.
Chair Seekins reconvened the meeting at 10:02:48 AM.
CHAIR SEEKINS asked whether there were any more amendments to
consider from the committee members.
SENATOR FRENCH moved Amendment 17.
CHAIR SEEKINS objected for discussion.
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A M E N D M E N T 17
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 130(L&C)
Page 28, line 12:
Delete "March 1, 2007"
Insert "the first week of the First Regular Session of the
Twenty-Fifth Alaska State Legislature"
Following "provide to the":
Insert "legislature and the"
10:04:22 AM
SENATOR FRENCH explained Amendment 17 refers to a medical review
committee and would move the review date up two months and make
certain the report is provided to the Legislature.
CHAIR SEEKINS removed his objection and Amendment 17 was
adopted.
10:06:27 AM
SENATOR GUESS moved a conceptual amendment. Page 28, line 12 add
the word "delivery" after the word "necessity." Hearing no
objections, Amendment 18 was adopted.
10:07:48 AM
SENATOR THERRIAULT moved a conceptual amendment. Page 15, line
12, delete "prescribing" insert "attending." Hearing no
objections, Amendment 19 was adopted.
10:08:47 AM
SENATOR GUESS asked the committee to revisit Amendment 2. She
expressed concern with moving SB 130 to the Senate Standing
Finance Committee with the changes they have made in regards to
Amendment 2.
CHAIR SEEKINS asked Mr. Lisanki to discuss the history of how
the limitation was placed on chiropractic visits.
MR. LISANKI explained in 1988 the Legislature was confronted
with the possibility of limiting certain types of medical care
in terms of frequency. The upshot of the 1988 Legislative
Session was statutory authority that was given to the Worker's
Compensation Board, which was authorizing them to address
certain types of treatment, which were described as "continuing
and multiple treatments of a similar nature." That has been
viewed as covering things like physical therapy, chiropractic
and similar healthcare treatments. The Board cast a regulation
that speaks of the number of treatments that can be given during
the 12-month period. The Board may allow more frequent
treatments.
10:11:42 AM
MR. LISANKI continued there were no distinctions drawn as to
whether a chiropractor could be considered an attending
physician.
CHAIR SEEKINS clarified a chiropractor, at the end of his
statutory authority, could collaborate with an allopath to
extend the treatments.
MR. LISANKI agreed.
SENATOR THERRIAULT asked whether it isn't enough that the Board
has the authority to authorize extended treatments.
MR. LISANKI said yes. The Board can revisit the regulations if
necessary.
10:14:46 AM
SENATOR THERRIAULT asked Mr. Lisanki to clarify whether the
current regulatory power of the Board applies to the attending
physician as defined by statute.
MR. LISANKI responded it applies to the limited types of
treatment described in statute.
SENATOR THERRIAULT inquired as to the need to restate.
CHAIR SEEKINS said the chiropractor should be on notice that a
task force will examine the area of "continuing in multiple
treatments of a similar nature."
10:17:20 AM
CHAIR SEEKINS said chiropractic care is an area where costs
could be controlled more effectively.
SENATOR THERRIAULT moved to rescind Amendment 2. Hearing no
objections, the motion carried.
SENATOR THERRIAULT moved an amendment to Amendment 2. Page 1,
lines 12 and 13, delete the language after (f) and strike it all
down to the comma after "occurs."
CHAIR SEEKINS clarified (f) would read, "a licensed
chiropractor." Hearing no objections, the motion carried.
SENATOR THERRIAULT moved Amendment 2. Hearing no objections, the
motion carried.
10:19:34 AM
CHAIR SEEKINS moved Amendment 13.
A M E N D M E N T 13
Sec 23.30.095. Preferred drug list; limitation of drug coverage.
(n) The department shall adopt a preferred drug list by adoption
of a regulation. The regulations must include
(1) standards for placing or not
placing a drug on the preferred drug list;
(2) an opportunity for public comment
before the department places or determines not to place a drug
on the preferred drug list;
(3) an appeal process for a person who is affected by
a decision of the department to place or not to place a drug on
the preferred drug list; and
(4) a provision under which the department will
approve coverage of a drug that is not on a preferred drug list
without requiring additional medical justification if a
physician documents on the prescription that the drug as
prescribed is medically necessary for the patient as being the
most effective drug available for the patient's condition by
writing on the prescription the phrase "dispense as written,"
"medically necessary," or other wording with similar import.
(o) Subject to AS 36.30 (State Procurement Code), the
department may contract for the services necessary to assist the
department in developing a preferred drug list or determining
whether coverage for a drug should be limited.
(p) The commissioner shall appoint a Prescription Drug
Review Advisory Committee consisting of practitioners who treat
injured workers of at least two members who are licensed
pharmacists under AS 08.80, at least two members who are
licensed to practice medicine under AS 08.64, at least two
members who are dentists licensed under AS 08.36 at least two
advanced nurse practitioners licensed under AS 08._; and at
least two Physician Assistants licensed under AS 08. .
(1) conducting public meetings on developing a
preferred drug list or limiting coverage for a drug;
(2) assisting the department in setting standards in
regulations for the review and selection of drugs for a referred
drug list;
(3) reviewing each drug and making recommendations to
the department as to whether the drug should be on a preferred
drug list or subject to limitation of coverage under the
standards adopted under (2) of this subsection.
(d) A committee member appointed under (p) of this section
serves without compensation but is entitled to per diem and
travel expenses authorized for boards and commissions under AS
39.20.180. The committee shall select a chair form among its
membership who may be removed from the position as chair only by
a majority vote of the full committee.
(q) In this section,
(1) "drug" means a prescription drug;
(2) "preferred drug list" means a list of drugs
(A) that comprise a restrictive formulary;
(B) for which the department will not
require a prior or retroactive
prescription approval process;
(C) for which the department will not
require medical justification by the
prescriber as a condition of coverage
under this chapter before the drugs
may be dispensed to a recipient of
assistance under this chapter; or
(D) for which the department will not
establish other similar restrictions
for coverage under this chapter
(E)
Renumber the following sections accordingly.
CHAIR SEEKINS explained the intent of Amendment 13 would delete
the generic drug product, the use of the cookbook approach, and
the fees. The Alaska State Medical Association proposed the
amendment.
10:23:57 AM
Roll call proved Amendment 13 failed unanimously.
10:26:12 AM
CHAIR SEEKINS moved Amendment 14.
A M E N D M E N T 14
Page 15
Delete Section 24 lines 10 through 31;
Page 16
Delete Section 24 lines 1 through 7; and
Page 17
Delete Section 25 lines 1 through 27
CHAIR SEEKINS objected for discussion. The amendment would keep
the current rates rather than rolling them back one year.
10:26:40 AM
MR. TIM KELLY, Alaska State Medical Association, explained
Amendment 14 would change the date of the schedule use for the
payment of medical fees from December 15, 2003 to the rates
established on December 15, 2004.
10:29:02 AM
SENATOR GUESS asserted the issue was one for the task force to
consider.
MS. HALL added one reason for looking into the worker's
compensation system was to address ways to decrease costs for
insurance purposes. She expressed concern with another year
passing with no cost impact.
SENATOR THERRIAULT moved to amend Amendment 14 to say,
"published bulletin in effect on December 1, 2003." Hearing no
objections, the motion carried.
Roll call proved Amendment 14 failed 4-1 with Senators Huggins,
Therriault, French, and Chair Seekins dissenting.
SENATOR HUGGINS moved Amendment 20. Line 15 delete "dated",
insert "in effect." Change the date from December 15 to December
1, 2003. Hearing no objections, the motion carried.
10:34:06 AM
CHAIR SEEKINS asked for a committee member to sponsor Amendment
15. He asked Mr. Lisanki whether the committee was at the point
to consider the American College of Occupational Environmental
Medicine (ACOEM) practice guidelines in respect to an insurance
company denying treatment.
MR. LISANKI responded there was nothing in the substance of the
text to indicate that.
CHAIR SEEKINS asked whether the Board would feel more
comfortable were the Legislature add the verbiage clarifying the
ACOEM guidelines could not be used to deny treatment.
MR. LISANKI said yes.
10:36:30 AM
SENATOR GUESS said that was addressed in Amendment 3.
Amendment 15 was withdrawn.
10:37:33 AM
CHAIR SEEKINS assigned Amendment 16 to the task force.
10:38:30 AM
CHAIR SEEKINS revisited Amendment 1 and said he would like to
expand the legislative membership to one member from the
minority to be determined by the Speaker and the Senate
President.
10:40:22 AM
SENATOR THERRIAULT moved to rescind Amendment 1. Hearing no
objections, the motion carried.
SENATOR THERRIAULT moved a conceptual amendment to Amendment 1.
The Speaker and the President of the Senate would select a
member of the minority jointly. Hearing no objections, the
motion carried.
SENATOR THERRIAULT moved Amendment 1. Hearing no objections, the
motion carried.
10:41:19 AM
CHAIR SEEKINS complimented the minority members of the Senate
Judiciary Standing Committee.
SENATOR HUGGINS moved CSSB 130(JUD) from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
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