Legislature(2005 - 2006)BELTZ 211
03/31/2005 01:30 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB130 | |
| SB108 | |
| SB142 | |
| SB147 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 142 | TELECONFERENCED | |
| *+ | SB 139 | TELECONFERENCED | |
| *+ | SB 108 | TELECONFERENCED | |
| = | SB 147 | ||
| = | SJR 11 | ||
| = | SB 130 | ||
SB 130-WORKERS' COMPENSATION
CHAIR CON BUNDE announced SB 130 to be up for consideration.
SENATOR SEEKINS moved to adopt CSSB 130(L&C), version G.
SENATOR ELLIS objected for an explanation.
CHAIR BUNDE explained that the CS freezes the rate fee schedule
on page 16, line 15, for medical claims to the 2004 rates until
2007 when a medical review committee report (page 28, lines 8 -
13) is released.
SENATOR ELLIS asked if the Governor was proposing to set rates
back to what they were in 1999.
CHAIR BUNDE replied yes, but the CS is proposing to go back to
last year.
SENATOR ELLIS asked if doctors could have input into the
solution where it is not onerous. He asked if they favor this.
CHAIR BUNDE responded that one doctor suggested freezing at
current rates and the Chair thought that is a good place to
start the discussion.
SENATOR ELLIS asked if the savings could be quantified and
compared to the Governor's proposal.
CHAIR BUNDE answered that there is a chart in the committee
packet that compares rates, but he based his decision on the
notion that you can't limit doctors' rates to the point where
there is no treatment available and obviously treatment is
available now at current rates.
SENATOR ELLIS asked if the CS would have less costs savings than
the Governor's proposal.
CHAIR BUNDE replied yes, but it would also allow more choice in
doctors for an injured worker. "It saves the state less money
and costs the doctors less money."
1:42:25 PM
SENATOR ELLIS asked what the CS does with the Medical Services
Review Committee as compared to the original bill.
PAUL LISANKIE, Director, Division of Workers' Compensation,
Department of Labor and Workforce Development (DOLWD), observed
that the CS language talks about the December 2003 fee schedule,
but the fee schedule in December 2003 was published in July 2003
- in case the Chair is intending to use the '03 schedule.
CHAIR BUNDE said the report is designed to provide hard data to
establish rates in 2007.
1:44:50 PM
SENATOR ELLIS asked if the administration supports the changes.
MR. LISANKIE didn't know. The commissioner said that he wants
the flexibility to get everybody someplace they could agree. "In
the spirit of doing that, we wouldn't see this as a roadblock to
getting where we need to get."
1:46:08 PM
CHAIR BUNDE said the second change on page 8 inserts language
that provides for better tracking and oversight of the voc rehab
system. The idea here is that the department doesn't have good
information like it has in other situations - like AVTEC where
people receive training and the Legislature gets a report after
one and two years. Voc rehab is rather costly and he wanted a
tracking mechanism to see how it is serving workers.
1:47:53 PM
CHAIR BUNDE moved on to change 3 in the CS that removes language
establishing a new appeals commission and reverts back to the
current hearing system - the Superior Court.
MR. LISANKIE commented that he didn't have explicit
instructions, but thought the administration wouldn't accept the
loss of the appeals commission.
CHAIR BUNDE hoped the issue could be discussed more thoroughly
in the next committee.
1:51:25 PM
He said change 4 clarifies language for use of the medical
guidelines. He asked for a stronger waiver component as an
option for doctors to use when, in their judgment, the best
treatment for a workers' comp injury falls outside the purview
of the guidelines. It removes the original language that says,
"The presumption must be rebutted by a preponderance of
scientific evidence."
SENATOR ELLIS asked how difficult it would be for a doctor to
get a waiver component and how would it work in the real world.
CHAIR BUNDE responded that the language is on page 15, line 18.
The intent is that the waiver is obtainable by a doctor based on
his professional judgment that the service is outside the
guidelines.
SENATOR SEEKINS envisioned the doctor could certify that the
treatment is not available in the manual, which doesn't set
forth all conceivable injuries.
CHAIR BUNDE read page 16, line 1:
The presumption established under (o) of this section
may be rebutted by an employee's physician's written
certification explaining the nature, extent and scope
of provided treatment or the service that is at
variance with the applicable guidelines or standards
and the basis for the physician's conclusion that the
provided medical treatment or service is at variance
was a reasonable requirement by the nature of the
injury.
1:55:25 PM
SENATOR ELLIS asked if the doctor's decision was appealable in
any sense.
SENATOR SEEKINS said it appeared to him that the claim wouldn't
be reimbursable without the doctor's authority.
SENATOR ELLIS said he thought there would be cases where the
doctor shouldn't have the power to decide that a treatment is
required outside the scope of the guidelines. The CS takes out
the rebuttable presumption.
1:57:39 PM
CHAIR BUNDE responded that the other option would be to have
really rigid guidelines and then an injury might go untreated or
be treated with something less effective. "At some point, in my
mind, we have to fall back and rely on the professional judgment
and the willingness of a doctor to put his integrity on the
line...."
SENATOR ELLIS concluded that they are granting professional
discretion, which is not appealable and has no policing
mechanism. "It's just we're going to take a chance."
CHAIR BUNDE said that Mr. Lisankie could report abuse back to
the Legislature and that could be changed.
1:59:25 PM
CHAIR BUNDE explained that change 5 of the CS inserts fraud
language that was suggested by the Ad Hoc Committee on pages 25
and 26.
2:00:51 PM
MR. LISANKIE commented this would be the first time having a
provision for punitive damages and he supported it.
SENATOR SEEKINS added that this provision doesn't preclude
criminal provisions for fraud.
MR. LISANKIE replied that is correct.
2:03:02 PM
DR. WILLIAM PFEIFER, Vice President, Alaska Chiropractic
Society, and delegate for the American Chiropractic Association,
had concerns with how the American College of Occupational
Environmental Medicine (ACOEM) guidelines would handle
chiropractic and other physical medicines that they lack right
now. It creates a burden on doctors who might have to file
continuous repetitive rebuttals. He suggested creating a
variance for situations not covered under ACOEM.
He had another concern with the medical services review
committee and would prefer a workers' comp review committee that
would provide a broader perspective.
2:06:07 PM
JIM ROBINSON, Ad Hoc Committee, said it continues to meet and
will work into next year on workers' comp issues.
2:07:09 PM
NOELL MCCULLOUGH didn't want to switch to a new system. She
wanted the Legislature to make the Workers' Compensation Board
fully live up to the last legislative audit and then look where
changes need to be made. She also asked why the ACOEM guidelines
were chosen above AMA guidelines.
2:08:38 PM
MR. LISANKIE answered that the American College of Occupational
Environmental Medicine is a not for profit organization and its
mission statement says, "Physicians interested in promoting the
optimal health and safety of workers, workplaces and
environments," and their particular focus is on, "Use of
evidence-based medicine and a focus on commonly occurring
industrial injuries, tasks and treatments with significant
incidents, cost and practice variations."
2:09:22 PM
MS. MCCULLOUGH said the fraud provisions in change 5 don't
include attorneys as a party who can be penalized for making
fraudulent statements.
CHAIR BUNDE replied, "The quick answer to that is that they will
be covered, but it will be examined more thoroughly."
2:10:13 PM
COMMISSIONER GREG O'CLARAY, Department of Labor and Workforce
Development (DOLWD), said the Senate Labor and Commerce
Committee's adjustments make sense. He supported rolling fees
back to what they were in 2004 so that doctors will be available
to care for people. He also felt that the appeals commission is
a key element in the bill.
2:12:56 PM
CHAIR BUNDE closed public testimony.
SENATOR ELLIS said he supports some of the CS and removed his
objection; and CSSB 130(L&C), version G, was adopted.
SENATOR ELLIS said he had three amendments that were requested
by a large number of voc rehab specialists.
SENATOR ELLIS moved Amendment 1.
24-GS1112\A.1
Craver
6/8/05
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR ELLIS
TO: SB 130
Page 13, line 14, 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 rehabilitation
specialist shall inform the administrator, and the administrator
shall select a different rehabilitation specialist."
CHAIR BUNDE objected for an explanation.
SENATOR ELLIS explained that Amendment 1 would prevent conflicts
of interest with rehab specialists who have been working on
behalf of an insurance company in a particular case or on a
particular claim from being selected or assigned to write the
vocational plan for the same claimant.
2:15:21 PM
MR. LISANKIE reacted favorably. He does not favor conflicts of
interest, although he did not have personal knowledge of a
problem in this area. He knows it's common for an injured worker
to get an evaluation and have a vocational rehabilitation
specialist assigned to their case. That person recommends that
the injured worker be found eligible for reemployment benefits
and that same provider goes on and works up the plan for the
injured worker. He wasn't sure what a rehab specialist would be
doing for an insurance company that would promote this.
2:17:07 PM
SENATOR SEEKINS asked if he seeks to disqualify the insurance
company or some other entity that employs or the rehabilitation
specialist.
SENATOR ELLIS replied that the amendment would preclude the
rehab specialist from working for the insurance company.
SENATOR SEEKINS said he thought that the language actually
disqualifies the company, firm or other entity that employs the
injured worker.
SENATOR ELLIS responded that those weren't his instructions to
the drafter and, further, that the amendments were prepared for
the original bill. But, he wouldn't object to making them
consistent with the CS. Amendment 1 could be conceptual.
CHAIR BUNDE removed his objection with that understanding.
2:20:00 PM
SENATOR BEN STEVENS asked if the amendment would prevent the
same specialist from doing both the evaluation and the
implementation of the plan.
SENATOR ELLIS replied yes, "It would prevent the same person
[from] doing both jobs." The suggestion came from voc rehab
specialists and he thought someone would be present to explain.
SENATOR BEN STEVENS said he didn't object to the amendment, but
thought someone from the profession should address that
question.
CHAIR BUNDE announced that conceptual Amendment 1 was adopted.
2:24:28 PM
SENATOR ELLIS moved Amendment 2.
24-GS1112\A.2
Craver
6/8/05
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR ELLIS
TO: SB 130
Page 13, line 15, through page 14, line 1:
Delete all material.
Renumber the following bill sections accordingly.
Page 35, line 3:
Delete "sec. 32"
Insert "sec. 31"
Page 35, line 4:
Delete "sec. 32"
Insert "sec. 31"
Page 37, line 2:
Delete "sec. 23"
Insert "sec. 22"
Page 37, line 6:
Delete "Section 54(a)"
Insert "Section 53(a)"
Page 37, line 7:
Delete "Sections 1 - 4, 32, and 56"
Insert "Sections 1 - 4, 31, and 55"
Page 37, line 8:
Delete "Sections 5, 12, 39, 49, and 55"
Insert "Sections 5, 12, 38, 48, and 54"
Page 37, line 13:
Delete "secs. 57- 59"
Insert "secs. 56 - 58"
CHAIR BUNDE objected for an explanation.
SENATOR ELLIS explained that Amendment 2 adds another
disqualifier to the job relocation benefit. The rationale is:
Accepting job dislocation benefit from a different
case should not permanently disqualify a worker with a
new and even more disabling injury from reemployment
benefits....
[Voc rehab specialists] are concerned that it would
exploit younger workers, workers with disabilities,
non-English-speaking workers and those who are
desperate for money. There is no oversight by the
Division of Workers' Comp on accepting job dislocation
benefits as there is on settlement. Also, no legal
representation required in the bill. So, this is
trying to address that overall concern.
CHAIR BUNDE asked if this was going to just protect people from
themselves.
SENATOR ELLIS answered that people are free to make bad choices
in this country, but in this case it potentially drives up costs
in the system.
CHAIR BUNDE asked what would prevent an injured worker who took
a cash settlement from coming back for a second unrelated
injury.
MR. LISANKIE explained that the current provision says if an
injured worker gets the benefit and goes back to work in the
same occupation in terms of physical demand, that disqualifies
him from a second claim if he gets a second injury.
2:30:32 PM
SENATOR ELLIS asked how often that scenario happens and said the
money is often much less than the rehab benefit cost would have
been.
MR. LISANKIE didn't have hard numbers about how often that
happens and regarding the second question, the settlement amount
might be significantly less or similar to what retraining would
cost. "As a rule of thumb there has to be some inducement to
settle and inducement is the view that you're saving a little
bit of money for your client."
2:31:37 PM
SENATOR ELLIS went back to the first question saying that the
department wrote this bill based on this concern and he is
trying to understand it and justify changing the law.
MR. LISANKIE responded that the premise was built into the
original act; in 1988 the Legislature felt that there was a
potential problem.
2:33:13 PM
CHAIR BUNDE said that tracking employment records of people who
had gone through rehab would be an ancillary benefit of the CS.
MR. LISANKIE agreed.
SENATOR ELLIS asked if there would be an answer to this question
in the future.
CHAIR BUNDE replied that he thought they would have more
specific information. There was no further discussion of
Amendment 2 and he maintained his objection.
MR. LISANKIE said he did not favor Amendment 2.
A roll call vote was taken: Senators Ben Stevens, Seekins and
Chair Bunde voted nay; Senators Ellis and Davis voted yea; and
Amendment 2 failed.
2:35:05 PM
SENATOR ELLIS moved Amendment 3.
24-GS1112\A.3
Craver
6/8/05
A M E N D M E N T 3
OFFERED IN THE SENATE
TO: SB 130
Page 14, lines 27 - 30:
Delete "The form provided by the division for
election shall specify that the employee understands the
scope of the benefits and rights being waived by the
election. The administrator shall serve a copy of the
executed election form on the parties within 10 days after
receiving the form from the employee."
Insert "Before accepting an election to accept a
job dislocation benefit in place of reemployment benefits
from an employee who has been given a permanent partial
impairment rating by a physician, the administrator shall
provide the employee planning on making an election with
individualized information including calculations based on
that employee's impairment rating to illustrate the effect
of making an election as well as other information to
clearly inform the employee of the potential consequences
of the employee's election.
(4) The form provided by the division for making
an election of benefits must require that a copy of the
individualized calculations and information provided to the
employee under (3) of this subsection be attached and
incorporated as part of the election and waiver and must
require the employee to acknowledge that the employee
understands the scope of the benefits and rights being
waived by the election. The administrator shall serve a
copy of the executed election form, including the
individualized information attached to the form, on the
parties within 10 days after receiving the form from the
employee.
(5)"
CHAIR BUNDE objected for discussion purposes.
SENATOR ELLIS explained:
The victim or claimant will not know all the risks of
waiving the benefit for what could be a relatively
small sum of money. There is also a concern by the voc
rehab specialists that adjustors will stipulate to the
retraining benefit and convince the victim to either
waive the benefit or go for the dislocation benefit
without communicating it to the claimant the value of
the benefit he is waiving or the risk of accepting the
job dislocation benefit.
CHAIR BUNDE asked if he is referring to an injured employee
being offered a cash settlement.
SENATOR ELLIS replied yes.
MR. LISANKIE elaborated that this amendment referred to Senator
Seekins' concern that some people preferred to settle and the
board didn't have the authority to stipulate to certain things.
The amendment would allow injured workers and their employers
and insurers to stipulate that the injured worker is entitled to
reemployment benefits and to go forward without having an
evaluation report prepared. "We think it is important that they
be allowed to stipulate."
He was not aware that some of the rehab community feels that
their role is to instruct the injured worker about what their
benefits are or aren't at any given point. The bill has a
proviso saying that the division will get in touch with someone
after he has been off work for 45 days to explain what is his
rights are, which is something that doesn't happen now.
With all due respect to the rehab people that have
suggested that, it's more important that we take the
time and spend the money to do an evaluation just to
make sure that nothing untoward can go forward. I
think the system would work adequately if the parties
were entitled to stipulate and move forward with
getting a plan together.
2:40:29 PM
SENATOR STEVENS wanted some clarification on the intent of the
amendment.
MR. LISANKIE replied the intent is to delete the ability to
stipulate.
So, it would essentially say that if the injured
worker and the employer or their insurer both agreed
that the injured worker was entitled to this benefit,
notwithstanding their mutual agreement, the
reemployment benefits administrator would have to
assign the case to a rehab specialist to do an
evaluation to confirm the party's belief that the
injured worker was entitled to the benefit.
SENATOR ELLIS said Amendment 3 is asking for an evaluation and
there could be a compelling state interest for knowing what the
plan would be.
2:44:25 PM
SENATOR SEEKINS countered if a guy has a crushed leg and must
hire a voc rehab person to evaluate it, that's not right.
I don't see any sense in that. If something is obvious
and they stipulate to say, 'Yeah, you're entitled to
vocational rehabilitation,' they ought to be able to
do it without having to go through that step.
SENATOR ELLIS replied, "There's a lot more to it than that,
Ralph."
SENATOR SEEKINS said they are trying to make sure that someone
with the least amount of capacity one way or the other is
protected. "However, I think there are times when it's so
obvious that we ought to be able to stipulate something rather
than having to go through a step that can be needless...."
SENATOR ELLIS said he would persist with the amendment and hope
for compromise.
2:46:11 PM
CHAIR BUNDE asked for a roll call vote. Senators Ben Stevens,
Seekins and Chair Bunde voted nay; Senators Davis and Ellis
voted yea; and Amendment 3 failed.
2:49:08 PM
SENATOR SEEKINS moved CSSB 130(L&C) from committee with
individual recommendations and attached fiscal notes. Senator
Ellis objected.
Senators Ben Stevens, Davis, Seekins and Chair Bunde voted yea;
Senator Ellis voted nay; and CSSB 130(L&C) moved from committee.
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