Legislature(2011 - 2012)BELTZ 105 (TSBldg)
03/01/2012 01:30 PM LABOR & COMMERCE
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* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 116-WORKERS' COMP.: COLL BARGAINING/MEDIATION 1:38:54 PM CHAIR EGAN announced SB 116 to be up for consideration. SENATOR PASKVAN moved to bring CSSB 116 (L&C), labeled 27- LS0549\X, before the committee. There were no objections. DANA OWEN, staff to the Senate Labor and Commerce Committee, said this CS clarifies issues that were raised in the previous hearing of the bill and adds one item that was not discussed. He said the title was expanded to add, "An Act authorizing employers and employees to mediate disputed workers' compensation claims and to negotiate a collective bargaining agreement that offers mediation and mandates arbitration..." The remainder of the title stays the same. Section 1 remains the same. He said the changes begin in Section 2, collective bargaining agreements. Subsection (a) expands language in (a)(1) of the previous bill and provides more details of the appeals process. Changes begin on line 28 where the bill establishes a process for resolving disputes through mediation, arbitration or both. The parties must agree before a particular dispute may be submitted to mediation. Then if mediation fails, it provides for arbitration. 1:42:27 PM MR. OWEN pointed out that lines 2 and 3 of page 2 specify that the arbitration will be conducted under AS 09.43. Title 9 is the code of civil procedure and chapter 43 is arbitration; the sections that are cited, 300 to 595, constitute Article 3, the Revised Uniform Arbitration Act. In the last meeting they heard there was some confusion over how the arbitration was to take place. The drafter suggested that it would be most direct to establish the arbitration as taking place under AS 09.43 because attorneys and courts are familiar with it; everyone involved should be familiar with it. 1:43:58 PM He also said that placing it under AS 09.43 implies a different appeals process than the Workers' Compensation Act where there is an appeal to the Workers' Compensation Commission. This will obviate that as appeals will no longer go to the Workers' Compensation Commission (the original intent of the bill). MR. OWEN said the bill clarifies that mediation or arbitration will govern the dispute resolution process under this chapter. It also says the dispute resolution process must result in findings of fact, award in a final order or decision by the arbitrator and that award order or decision has the same force and effect as a finding of fact, award order or decision of a hearing officer under AS 23.30.005 (Workers' Compensation Board). This means the arbitrator's ruling under a collectively bargained agreement will have the same effect and force as an order of the board. Subsection (b) on page 2, line 25, of the bill guarantees that benefits under Chapter 23.30 (Workers' Compensation Act) cannot be bargained away. It further clarifies that the agreement and processes negotiated under this law cannot themselves be considered a reduction of benefits. 1:45:39 PM Subsection (c) on line 30 insures that physicians can meet and communicate with parties to a negotiation in the process of establishing lists of physicians who are the exclusive medical providers in a collectively bargained agreement. Currently, physicians are prevented by law from collaborating on contracts, fees and things like that. Alaska has a very narrow exception carved out in statute and this would be the only other exception. Currently physicians are allowed to do that only if they are negotiating a managed benefits organization. This would allow physicians to talk to one another if they were going to try and get on to the list that would be established under a collectively bargained agreement under this statute. 1:47:20 PM DENNIS BAILEY, drafting attorney, Legislative Affairs Agency, Alaska State Legislature, said he was available to answer questions on SB 116. SENATOR GIESSEL said as a health care provider her overarching concern is patients' choice in one of the most intimate aspects of their lives. She invited her staff to explain her proposed amendment. 1:48:32 PM 27-LS0549\X.1 Bailey A M E N D M E N T OFFERED IN THE SENATE BY SENATOR GIESSEL TO: CSSB 116(L&C), Draft Version "X" Page 3, lines 13 - 15: Delete all material. Renumber the following paragraphs accordingly. Page 3, line 26, following "not": Insert "(1)" Page 3, lines 26 - 27: Delete ". For purposes of this subsection" Insert "; for purposes of this paragraph" Page 3, line 29, following "chapter": Insert "; or (2) identify health care providers who are the exclusive source of medical treatment provided under this chapter; in this paragraph, "health care provider" has the meaning given in AS 09.55.560" Page 3, line 30, through page 4, line 4: Delete all material. Reletter the following subsection accordingly. SHARON LONG, staff to Senator Giessel, directed them to page 3 of the amendment where lines 13-15 were deleted to show up later. The second change begins on line 26 and inserts "1" after "not" and deletes "for the purposes of this subsection" and inserts "for the purposes of this paragraph." On line 29, "2" is inserted after "chapter." The language that was deleted from lines 13-15 is inserted after "chapter." The last change deletes lines 30 and 31 on page 3 through line 4 on page 4. This preserves the right currently in statute for injured workers to choose their own health care provider. SENATOR PASKVAN said he understands that now there are generally exclusive providers designated under plans and asked if that is true and assuming it is, does this prohibit that in the future. SENATOR GIESSEL replied the main purpose is to allow the patient to choose whatever health care provider they want to: in other words, their private physician or if they are part of a plan that designates a physician. This addresses a collective bargaining agreement not a person who is not part of a collective bargaining agreement. SENATOR PASKVAN said his belief is if you want to go to a dentist, there are dentists the state has said are on the list and those dentists have agreed with the state of Alaska, for instance, that they will do a cavity for $100. His question is if this would prohibit the State of Alaska from negotiating with dentists to get a lower collective price for that service. SENATOR GIESSEL said it wasn't her intent to do that, but the drafter could help answer that. MR. BAILEY said the focus of the bill allows an employer and their employees in a union to negotiate a mediation and an arbitration process. As part of that process they are allowed to negotiate the selection of health care providers that would be permitted to provide services to the union members (in section 2). The normal operation of the workers' compensation statute that allows employers to negotiate with health care providers to provide services under their workers' compensation coverage isn't affected by this bill. The bill is restricted to the concept of negotiating different terms under the provisions of the collective bargaining agreement. SENATOR PASKVAN remarked that the short answer is no or he is confused. He rephrased his question; if you allow full choice to the employee who goes to a dentist that charges $150 instead of a contracted dentist who charges $100, who pays the $50? MR. BAILEY replied under the current workers' compensation statute outside of a collective bargaining agreement the employee who makes a claim can choose his/her health care provider and an alternate. The issue really is choosing who your health care provider is. There may be circumstances where an employer chooses the health care provider for an employee who makes a claim, but that is limited to employees that don't make their own choice. It may be that the employer could negotiate with a group of physicians to provide that in those circumstances, but the general rule is the employee gets to choose their own physician in workers' compensation. So, the question of negotiating a lower rate is more applicable to a health care plan not within the context of a workers' compensation claim. SENATOR PASKVAN said he thinks where it talks about "competing physicians may meet and communicate" means with respect to whether they are participants in an exclusive source agreement with an employer. His perception is if you have competitors meeting, you have price fixing and wanted to know what the result of that would be. MR. BAILEY replied the purpose of allowing physicians to communicate concerning providing services by the group is intended under AS 23.50. In the absence of a provision like that, whoever is negotiating with the physicians could go and negotiate with each physician and pit one against another to negotiate a lower price. It's included in this bill because it provides for a negotiation of who the medical providers are. In that negotiation physicians, presumably, would want to be able to negotiate as a group not individually. That is the purpose of Section (c). SENATOR GIESSEL said the amendment would remove that section. MR. BAILEY said the amendment takes out the provision about negotiating who the health care provider is. It says we don't want you to negotiate who the physicians are; we want the existing method that allows an individual to choose their own provider to apply instead. 2:01:51 PM MS. LONG said the amendment takes away the ability to bargain away one's right to choose a physician in a bargaining agreement, but it doesn't change the ability of physicians getting together to decide to provide a service through an employer at certain rates. It doesn't take away the provisions of the physicians under AS 23.50.020 outside of a bargaining agreement. MR. BAILEY added that AS 23.50 allows physicians to negotiate as a group under certain circumstances. The only reason it was included originally was as it applies to the collective bargaining agreement sections. If you take it out of the collective bargaining agreement context, it does not affect the remainder of AS 23.50 which relates to bargaining by physicians. SENATOR GIESSEL said Mr. Owen referred to a managed care group and that provision is still there. 2:04:20 PM SENATOR PASKVAN said the operative term is "competing physicians." If the physicians formed as a group they are not in competition with each other, but the question is if that second group is comprised of competing individuals and how that affects the analysis. MR. BAILEY replied that you have to keep it in the context of this bill that relates to collective bargaining for mediation (to decide who the health care providers are for the union employees). When a collective bargaining agreement allows for (it's not mandated) designating a certain group of physicians to provide medical services, then the provisions of (c) apply. So, by taking that section out, you're saying that it doesn't apply here because a particular physician isn't being chosen to provide services. SENATOR PASKVAN stated that lines 13-17 of the amendment say the agreement may not identify health care providers who are the exclusive source of medical treatment, but the inference is that there is a list of exclusive source and you can't give it to the employee. Is that a misunderstanding? MS. LONG replied that she didn't understand the question. SENATOR PASKVAN asked why put an amendment in that says they cannot identify the list if they never put a list together. SENATOR GIESSEL said this bill deals with a disputed works claim issue (collective bargaining agreements) that would have a list of exclusive health care providers. The injured worker would now be confined to an exclusive list that might or might not include their own personal healthcare provider. That is the piece the amendment removes. It would allow them to go to their own healthcare provider. CHAIR EGAN stated that he wanted to make sure the committee had enough time to get answers to the questions before passing this bill. MR. BAILEY said the amendment removes negotiation of medical providers under the collective bargaining agreement. 2:11:51 PM SENATOR PASKVAN clarified that it has no one with which to negotiate reduced prices. SENATOR DAVIS said she would feel comfortable acting on the bill if Mr. Bailey could answer the question. MR. BAILEY said the amendment does one thing: it removes the negotiation of medical providers under the collective bargaining agreement. The results of the provisions of the existing workers' compensation statute, which allows you to choose your own treating physician in a claim would continue to apply as they normally do. Section (c) (about competing physicians negotiating) doesn't apply anymore because there wouldn't be any specified physicians under the collective bargaining agreement. SENATOR PASKVAN remarked so this removes any negotiation between an employer and physicians with respect to providing services, and asked if it also means that the employer has no one with whom they can negotiate reduced prices as a package for their employees. MR. BAILEY replied that the employer and the employee under the existing bill without the amendment negotiate that. If that section is removed, there isn't going to be a negotiation under the collective bargaining agreement for selecting particular employees. So the employer would not be in a position to negotiate with physicians about what they provide or what the costs of their services are. SENATOR PASKVAN agreed that no price negotiation follows, but pointed that out as a potential loss to the employees when the employers' superior bargaining strength might be able to obtain a discounted price. MR. BAILEY said there is no negotiation by the employer for the cost of paying for the employee's physician and that wouldn't change if the amendment is adopted. If it doesn't pass, then both the employer and employee negotiate that already in the collective bargaining agreement. SENATOR GIESSEL said the strength of having a person being able to choose their own health care provider is that they will be continuing to see that person and that healthcare provider knows their physical condition both before the injury and after, how they are progressing through it, family history and things like that. CHAIR EGAN said he would hold SB 116 for a future meeting.