BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
STATE OF MONTANA
In the matter of the amendment of 24.29.2701, regarding silicosis benefits; the adoption of NEW RULES I through V; regarding the subsequent injury fund; and the repeal of ARM 24.29.2601, regarding the subsequent injury fund
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT, ADOPTION, AND REPEAL
TO: All Concerned Persons
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than 5:00 p.m., on November 17, 2010, to advise us of the nature of the accommodation that you need. Please contact the Employment Relations Department, Department of Labor and Industry, Attn: Bruce R. Chamberlain, P.O. Box 8011, Helena, MT 59604-8011; telephone (406) 444-7732; fax (406) 444-7710; TDD (406) 444-5549; or e-mail email@example.com.
3. The rule proposed to be amended provides as follows, stricken material interlined, new material underlined:
24.29.2701 PAYMENT OF SILICOSIS BENEFITS (1) The Department of Labor and Industry will pay silicosis benefits to persons entitled to receive those benefits pursuant to Title 39, chapter 73, MCA. Such persons include the victim of silicosis, the surviving spouse of such a victim, or an appropriate representative of the victim or surviving spouse
of the victim.
(2) The monthly amount paid as silicosis benefits is established by the legislature, and is subject to a funding level appropriated by the Legislature for payment of monthly silicosis benefits.
(a) For the state fiscal biennium 2000-2001, the monthly amount paid as silicosis benefits is $225.00, except for persons who are the surviving spouse of a victim who died prior to March 14, 1974, or the representative of such a surviving spouse. The monthly amount payable to the surviving spouse of a victim who died prior to March 14, 1974, or the representative of such a surviving spouse, is $125.00.
(3) After the death of a recipient of benefits, any payment issued by the department for which there is no entitlement to benefits must be reimbursed to the department for deposit in the fund.
AUTH: 39-73-102, MCA
IMP: 39-73-104, 39-73-107, 39-73-108, 39-73-109, 39-73-111, MCA
REASON: There is reasonable necessity to amend this rule to clarify that the benefits paid by the department after the death of a silicosis benefit recipient are to be reimbursed to the department, since the right to receive benefits is personal to the beneficiary and exists only during the beneficiary's life. In addition, because the amount of silicosis benefits are now set by the Montana Legislature, there is reasonable necessity to repeal the benefit rate information. Department records show that no beneficiaries of persons who died prior to March 14, 1974, exist, and therefore this portion of the rule may be repealed.
4. The proposed new rules provide as follows:
NEW RULE I DEFINITIONS For the purposes of this subchapter, the following definitions apply:
(1) "Applicant" means a person with a disability who applies to the department for SIF certification.
(2) "Certified" and "certification" mean the department has determined an individual has a permanent physical or mental impairment that constitutes a substantial obstacle to employment, based upon review of the SIF application, the medical evidence of impairment form, and rehabilitation evaluation, if applicable.
(3) "Department" means the department of labor and industry.
(4) "Indemnity benefits" means any payment made by an insurer directly to the worker or the worker's beneficiaries, other than a medical benefit. The term includes payments made pursuant to a reservation of rights. The term does not include expense reimbursements for items such as meals, travel, or lodging.
(5) "Maximum medical improvement" means the same as provided by 39-71-116, MCA.
(6) "Permanent impairment" means a significant deviation, loss, or loss of use of any body structure or function in an individual, with respect to a health condition, disorder, or disease that has reached maximum medical improvement.
(7) "Reemployment" means placement with the time-of-injury employer in a new or modified position, with or without accommodations made for the certified worker's permanent impairment.
(8) "Referring agent" means a person or agency that assists an individual in preparing an SIF application.
(9) "SIF" means the subsequent injury fund, which is administered by the department.
(10) "Treating physician" means the same as provided by 39-71-116, MCA.
AUTH: 39-71-203, 39-71-904, MCA
IMP: 39-71-116, 39-71-901, 39-71-905, MCA
REASON: It is reasonably necessary to adopt NEW RULE I to define the significant terms used in the rules related to the SIF, as used in NEW RULES II through V.
NEW RULE II INTRODUCTION (1) The department administers the subsequent injury fund (SIF), as provided by 39-71-901, et seq, MCA.
(2) A person with a permanent impairment that is a substantial obstacle to employment may seek certification by the department. Only an individual may be certified by the department, not a specific body part or condition.
(3) The department shall use the SIF to reimburse eligible expenses incurred by an insurer for:
(a) Causally related medical payments made on behalf of a certified individual 104 weeks after the occurrence of a subsequent injury or onset of an occupational disease; and
(b) Indemnity payments made to a certified individual after the insurer has paid a total of 104 weeks of indemnity payments.
(4) The SIF may not reimburse administrative expenses incurred by an insurer to process a claim.
(5) The department must receive timely and appropriate notice from the insurer pursuant to [NEW RULE V] before the department may reimburse an insurer.
(6) The department may require an insurer of a certified individual to submit reports of periodic medical examinations of the certified individual.
AUTH: 39-71-203, 39-71-904, MCA
IMP: 39-71-901, 39-71-905, 39-71-907, 39-71-908, MCA
REASON: There is reasonable necessity to adopt NEW RULE II for the purpose of explaining the general procedures of application, certification, and reimbursement to insurers pursuant to the Subsequent Injury Fund program. This proposed rule, together with NEW RULES I, III, IV, and V, proposed as part of this notice, describe SIF procedures with specificity. The proposed rule clarifies that only an individual may obtain certification under the SIF.
NEW RULE III CERTIFICATION PROCESS (1) A person with a permanent impairment that is a substantial obstacle to employment may apply for SIF certification. Application for SIF certification is voluntary on the part of the applicant.
(2) Application for certification requires the following documentation:
(a) a completed SIF application form signed by the applicant, which includes:
(i) information regarding applicant's education, training, and job skills;
(ii) the applicant's employment history for the past ten years;
(iii) the applicant's assessment of the impact of applicant's permanent impairment on future employment; and
(iv) a description of any modifications to employment reasonably necessary to accommodate work restrictions; and
(b) a completed SIF medical evidence of permanent impairment form signed by a treating physician, which includes:
(i) an assessment of applicant's permanent impairment;
(ii) an assessment of the impact of applicant's permanent impairment on applicant's employability, including a description of permanent work-related restrictions and limitations;
(iii) copy of a treating physician's notes documenting applicant's permanent impairment and obstacles to employment, including any work restrictions, if available; and
(iv) evidence the applicant has achieved maximum medical improvement.
(3) The department shall review the application, the medical evidence of permanent impairment form, and other supporting documentation. The department shall evaluate whether the applicant qualifies for certification, in accordance with the requirements set forth by [NEW RULE IV].
(4) The department encourages persons with a permanent impairment that is a substantial obstacle to obtaining employment or reemployment to apply for certification when a treating physician has not completed the medical evidence form. The department shall notify the applicant in writing when a medical evidence of form or other supporting information is needed to complete the certification process.
(5) The applicant may submit a signed release to the department that authorizes the department to contact, notify, and confer with a referring agent, a designated representative, or applicant's medical provider.
(6) When the department approves an application, the department shall notify the applicant and referring agent, if applicable, and provide the applicant with an SIF certification card.
(7) The department shall retain an incomplete application for a period of one year. When an application remains incomplete one year after submission, the department shall deny the application.
(8) When the department denies an application, the department shall inform the applicant and referring agent, if applicable, in writing of the reasons for denial.
(9) Upon the written petition of the applicant, the department shall reconsider the denial of an application, pursuant to the administrative review process outlined by ARM 24.29.206. The applicant shall submit the petition for administrative review and any additional information for department consideration within six months following a denial.
(10) After an administrative review that affirms the denial of an application, the applicant may submit a written request to the department for a contested case hearing, pursuant to ARM 24.29.207.
AUTH: 39-71-203, 39-71-904, MCA
IMP: 39-71-905, MCA
REASON: It is reasonably necessary to adopt NEW RULE III to establish consistency, accuracy, and equity in the SIF application and evaluation process. The proposed rule sets forth the formal process for applying for SIF certification and allows for referring agents to assist applicants in the preparation of an application and to confer with the department on the applicant's behalf. The proposed rule establishes notice requirements for the department and a process for administrative reconsideration and dispute resolution.
NEW RULE IV CERTIFICATION REQUIREMENTS (1) The department shall grant SIF certification to an individual when all of the following requirements are met:
(a) The applicant has documented the existence of a permanent physical or mental impairment that adversely impacts the applicant's employability, in accordance with [NEW RULE III]. The applicant's permanent impairment may result from a congenital condition, trauma, or disease. The permanent impairment does not have to be caused by a work-related injury or occupational disease;
(b) The medical evidence of applicant's permanent impairment is not more than six months old at the time of application;
(c) The medical evidence of permanent impairment relates directly to the condition identified on the application form;
(d) A treating physician has provided written documentation that the applicant is permanently impaired; and
(e) A treating physician has provided written documentation of employment restrictions or limitations due to the applicant's permanent impairment that demonstrates the impairment presents a substantial obstacle to employment or reemployment.
AUTH: 39-71-203, 39-71-904, MCA
IMP: 39-71-905, MCA
REASON: It is reasonably necessary to adopt NEW RULE IV to set forth specific requirements for certification with the SIF. The proposed rule clarifies that a permanent impairment may or may not be the result of a work-related injury. To ensure that the medical information available for department review is reasonably current, the proposed rule establishes a requirement that medical evidence must be less than six months old, unless the applicant has stabilized at maximum medical improvement. The proposed rule requires the applicant to submit documentation of employment restrictions or limitations as evidence of the substantial obstacle to employment or reemployment experienced by the applicant.
NEW RULE V REIMBURSEMENT PROCESS (1) The department shall determine the right of an insurer to SIF reimbursement of medical and indemnity payments to an SIF-certified individual in accordance with the criteria outlined by this rule.
(2) The insurer shall provide written notice to the department no sooner than 150 days or later than 90 days before the SIF becomes liable to reimburse the insurer for medical or indemnity benefits paid on behalf of the SIF-certified individual.
(3) After an insurer's right to SIF reimbursement has been established, the department recommends the insurer request SIF reimbursement in writing at six-month intervals.
(a) The department may not reimburse the insurer for medical benefits paid to or on behalf of an SIF-certified individual during the first 104 weeks following the date of injury. The insurer shall submit copies of the SIF-certified individual's first report of injury and all related medical reports for department review.
(b) The department may not reimburse an insurer for indemnity benefits until after the insurer has paid a total of 104 weeks of indemnity benefits to the SIF-certified individual.
(4) Each reimbursement request must state the amount of reimbursement claimed for medical and indemnity payments and include the following documentation for the six-month reimbursement period:
(a) computer printout or comparable listing that identifies the type of indemnity payment to the SIF-certified individual (temporary partial disability, temporary total disability, permanent partial disability, or permanent total disability) and includes check numbers, dates checks were issued, dates of indemnity, total weeks of indemnity, and the total amount paid;
(b) computer printout or comparable listing of all medical bills paid, including check numbers, dates checks were issued, provider names, and dates of service; and
(c) copies of all medical bills with the corresponding explanations of benefits and directly related medical records.
(5) The insurer shall notify the SIF representative and the department at the outset of settlement negotiations involving an injured individual who is SIF-certified. The insurer shall waive the right to SIF contribution by failing to notify the department at the outset of settlement negotiations.
(6) The insurer shall submit any negotiated settlement agreement to the SIF representative and the department for approval prior to final settlement.
(7) Disputes arising over payment or reimbursement between the department and the insurer may be resolved by the contested case hearing process, pursuant to ARM 24.29.207, at the written request of the either party.
AUTH: 39-71-203, 39-71-904, MCA
IMP: 39-71-907, 39-71-908, 39-71-909, 39-71-912, 39-71-920, MCA
REASON: It is reasonably necessary to adopt NEW RULE V to identify time thresholds critical to the reimbursement of insurers and to outline the documentation required to support a reimbursement request. To comport with 39-71-920, MCA, the proposed rule requires insurers to obtain concurrence of the department's SIF representative before a settlement agreement between the insurer and claimant is finalized. The proposed rule provides explicit direction for dispute resolution.
5. The department proposes to repeal the following rule:
24.29.2601 NOTIFICATION WHEN COMPENSATION TO BE CONTINUED BEYOND 104 WEEKS , found at page 24-2285 of the ARM.
AUTH: 39-71-904, MCA
IMP: 39-71-904, MCA
REASON: There is reasonable necessity to repeal this rule and adopt NEW RULES I through V to more fully explain the procedures of application, certification, and reimbursement to insurers pursuant to the SIF program.
6. Concerned persons may present their data, views, or arguments, either orally or in writing, at the hearing. Written data, views, or arguments may also be submitted to: Bruce R. Chamberlain, Employment Relations Division, Department of Labor and Industry, P.O. Box 8011, Helena, Montana 59624-8011; by facsimile to (406) 444-7710; or by e-mail to firstname.lastname@example.org and must be received no later than 5:00 p.m., November 26, 2010.
7. An electronic copy of this Notice of Public Hearing is available through the department's web site at http://dli.mt.gov/events/calendar.asp, under the Calendar of Events, Administrative Rules Hearings Section. The department strives to make the electronic copy of this Notice of Public Hearing conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the department strives to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems, and that a person's difficulties in sending an e-mail do not excuse late submission of comments.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request, which includes the name and e-mail or mailing address of the person to receive notices, and specifies the particular subject matter or matters regarding which the person wishes to receive notices. Such written request may be mailed or delivered to the Department of Labor and Industry, attention: Mark Cadwallader, 1327 Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to email@example.com, or may be made by completing a request form at any rules hearing held by the agency.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. The department's Hearings Bureau has been designated to preside over and conduct this hearing.
/s/ MARK CADWALLADER /s/ KEITH KELLY
Mark Cadwallader Keith Kelly, Commissioner
Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY
Certified to the Secretary of State October 18, 2010