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| Montana Administrative Register Notice 24-29-237 | No. 14 07/30/2009 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF
TO: All Concerned Persons 1. On August 21, 2009, at 10:00 a.m., the Department of Labor and Industry (department) will hold a public hearing to be held in the first floor conference room (room 104), 1327 Lockey Avenue, Walt Sullivan Building, Helena, MT to consider the proposed adoption of the above-stated rules. 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 August 14, 2009, to advise us of the nature of the accommodation that you need. Please contact the Employment Relations Division, Department of Labor and Industry, Attn: Diana Ferriter, P.O. Box 8011, Helena, MT 59604-8011; telephone (406) 444-1574; fax (406) 444-4140; TDD (406) 444-0532; or e-mail diferriter@mt.gov. 3. GENERAL STATEMENT OF REASONABLE NECESSITY: There is reasonable necessity to adopt rules to implement Chapter 125, section 2, Laws of 2009, put into place by the 2009 Legislature. Chap. 125, section 2, L. of 2009 provides that the Montana Department of Labor and Industry shall adopt rules for the voluntary certification of workers' compensation claims examiners and adopt a fee for the certification program in rules. 4. The proposed new rules provide as follows: NEW RULE I PURPOSE OF RULES (1) The purpose of these rules is to establish standards for the voluntary certification of workers' compensation claims examiners handling workers' compensation claims in the State of Montana, providing for minimum qualifications, examination, two-year certification and renewal, continuing education requirements, and a waiver of examination requirements. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a general purpose statement to implement Chap. 125, section 2, L. of 2009. NEW RULE II DEFINITIONS For purposes of this subchapter, the following definitions apply: (1) "Approved continuing education course" or "course" means any course, seminar, or program of instruction that has been approved by the department for presentation as part of the continuing education requirements for claims examiner certification and that relates to the state workers' compensation system or to interactions among injured workers, medical providers, and employers. (2) "Certificate of completion" means a document issued by the sponsoring organization to the claims examiner signifying satisfactory completion of a course and reflecting credit hours earned by the claims examiner. (3) "Claims examiner" means a claims examiner as defined under 39-71-116, MCA. (4) "Classroom setting" means a course format in which a body of students meets to study the same course materials under the direction of the same approved instructor. (5) "Credit hours" means the value assigned to a course by the department, upon review and approval of course materials and content outline. (6) "Instructor" means an individual who meets the requirements set forth in [New Rule XI], is identified by a sponsoring organization in a course submission, participates in course presentations, activities and discussions, and who may monitor the attendance and conduct of course participants, or administer examinations. (7) "Proctor" means a person who monitors the attendance, conduct, and the examination process for course participants, but who does not participate in course presentations, activities or discussions, or complete any required examinations. (8) "Remote training" means a course format in which a body of students attend a training session using a web meeting tool and/or conference telephone service with a method approved by the department to ensure full participation of each student. (9) "Self-study" means those independent study methods taught outside the classroom setting through approved text, audiotape materials, videotape materials or another method of information exchange. (10) "Significant change" means a change in two or more of the following course elements: (a) course goals or objectives; (b) major course topic(s); (c) course length; (d) syllabus or course outline; (e) teaching method; or (f) examination method. (11) "Sponsoring organization" means any group(s) or organization(s) and their agent(s) that submit courses for department review and offer or provide approved courses for continuing education credit to allow claims examiner certification and are responsible for those course offerings. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt definitions to implement the new rules pursuant to Chap. 125, section 2, L. of 2009. NEW RULE III APPLICABILITY OF RULES (1) These rules apply to voluntary certification of workers' compensation claims examiners on or after the effective date of these rules. (2) Initial certification remains in effect for two years. (3) A claims examiner's certification period will be renewed for two years upon application and verification that the claims examiner meets the continuing education requirements under the rules in effect on the date renewal is due. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule to indicate the length of time certification lasts. NEW RULE IV CERTIFICATION OF CLAIMS EXAMINERS (1) Claims examiners must be certified by the department upon the following: (a) completion of the application form provided by the department; (b) meeting the minimum qualifications for certification in (2); (c) payment of the required fees; and (d) satisfactory completion of either an examination or meeting the waiver requirements as provided in [New Rule VI]. (2) To meet the minimum qualifications, the applicant for certification shall be: (a) at least 18 years of age; and (b) have a high school diploma or equivalent certificate. (3) Certification will be for a two-year period. The certification date shall be the date of the successfully completed examination or the date the department issues a certification to an applicant that meets the examination waiver requirements. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule to state the minimum qualifications for voluntary certification. NEW RULE V EXAMINATION FOR CLAIMS EXAMINERS (1) Each applicant for certification as a workers' compensation claims examiner shall, prior to the issuance of such certification, personally take and pass an examination given by the department or a department-approved agent as a test of qualifications and competency, except as provided by a waiver in [New Rule VI]. (2) Satisfactory completion of an examination demonstrates the individual's: (a) familiarity with Montana's workers' compensation statutes; (b) ability to navigate the administrative rules found in this chapter; (c) knowledge of workers' compensation definitions and concepts including for example, course and scope, coverage, liability, subrogation, claims for benefits, compensation and medical benefits, settlements, subsequent injury fund, vocational rehabilitation, mediation, and due process. (3) Any person taking an examination may use a copy of Title 39, Chapter 71, MCA, during the test procedure. (4) A passing score on an examination shall be 80 percent or greater. (a) An applicant for claims examiner certification may retake an examination as many times as necessary to pass the examination with a score of 80 percent or greater. The examination fee must be paid for each examination taken. (5) Any examination completed through dishonest or fraudulent means shall be considered invalid. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule requiring an examination. NEW RULE VI WAIVER OF EXAMINATION (1) Claims examiners may be certified by the department upon providing satisfactory evidence of meeting the following waiver requirements: (a) evidence that the claims examiner has been actively engaged as a Montana claims examiner working on workers' compensation claims for five of the seven years immediately preceding the application for certification. (b) the waiver may only be given if application and payment of the applicable fee is received within the first 12 months after the department has adopted the initial rules. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule to indicate when a person is eligible for waiver of the certification examination. NEW RULE VII CONTINUING EDUCATION REQUIREMENTS FOR RENEWAL (1) Certification shall be renewed upon: (a) payment of the applicable fee; (b) completion of the renewal form provided by the department at any time during the certification period, but no later than the expiration of the renewal date; (c) verification of completion of 24 hours of approved continuing education courses during the current certification period, to include at least: (i) four hours of training on workers' compensation statutes, administrative rules, and case law since the last certification; and (ii) one hour of training on appropriate and ethical communication; and (iii) other approved continuing education courses which may include but are not limited to mediation/negotiation; medical terminology; human anatomy; interpreting medical records; injured worker's rights and responsibilities; insurers' rights and responsibilities; prevention of injuries; stay-at-work/return-to-work training; and medical fee schedule reimbursements. (2) The department may accept workers' compensation continuing education courses approved by the Office of Public Instruction, the state bar of Montana or the Montana Insurance Commissioner for the adjuster license requirements toward 50 percent of the 24 hours of approved courses required for the claims examiner certification renewal. (3) No more than six hours of approved continuing education courses may be carried over to the next certification period. The request for approved continuing education courses to be carried over must be submitted with the renewal application for which the courses were taken. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt rules detailing continuing education requirements. NEW RULE VIII LAPSE IN CERTIFICATION (1) If a certification has lapsed past the renewal date, but application for renewal is received within 12 months from the renewal date, the claims examiner must pay the application fee and provide evidence of sufficient continuing education credits received during the lapsed period. (2) If a certification has lapsed greater than 12 months from the renewal date, the claims examiner must submit an application for certification; pay the fee; and successfully pass examination. The continuing education credit requirement for renewal starts over with the new certification period. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule indicating applicable procedures in the event a certification lapses. NEW RULE IX REVIEW AND APPROVAL OF CONTINUING EDUCATION COURSES BY DEPARTMENT (1) Any sponsoring organization that requests continuing education credits be approved by the department for training must complete and submit a request on a form provided by the department. (2) The department shall review the course submission and determine the number of credit hours to be awarded for completion of the course. (3) "Hour" as used in this subchapter, means 50 minutes of instruction. (4) Courses subject to an award of continuing education credits may include but are not limited to: (a) classroom setting or seminars; (b) self-study, electronic media; (c) correspondence course; (d) computer-based training; or (e) remote training. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule indicating the process for course approval. NEW RULE X COURSE SUBMISSIONS (1) The following standards, by which acceptability of submitted courses are evaluated, must all be certified by the sponsoring organization: (a) the practical and academic experience of each faculty member is sufficient to teach the subject assigned; (b) the course enhances the ability of a claims examiner to provide claims handling services to the public effectively; (c) the subject matter relates to professional ethics, where practicable. (2) Submissions for approval of courses must include at least the following information: (a) the name of the sponsoring organization; (b) the title of the course; (c) the proposed date(s) of offering; (d) course goals and objectives; (e) major course topic(s); (f) course length; (g) a list of other states, if any, that have approved the course and the credits granted the course in those states; (h) a syllabus or course outline; (i) a summary of each course outline element; (j) method of instruction, such as classroom, self-study, videotape, audiotape, teleconference, etc.; (k) method of administering examinations, if any; (l) method of attendance verification; (m) method of student record maintenance; (n) instructors, if any; (o) a designated contact person; (p) a written explanation of examination security measures and examination administration methods; and (q) written notification of additional dates of course offering to the department three days in advance of presentation of any course. (3) Requests for approval of courses must be received by the department no less than 30 days prior to the anticipated starting date of the course. (4) Approved accredited university or college courses will be allowed 15 continuing education credits for each semester credit and ten continuing education credits for each quarter credit. (5) Charges for courses must be clearly disclosed to students before enrollment: (a) if a course is canceled for any reason, all charges are refundable in full, unless the refund policy is clearly defined in the enrollment application; (b) in all instances, the charges must be refunded within 45 days of cancellation; (c) in the event that a continuing education provider postpones a course for any reason, the provider must give the students a choice of attending a course at a later date or having their charges refunded in full. The provider must refund the charges within 45 days of the postponement unless the student notifies the provider that the student has chosen to attend a later course; (d) a sponsoring organization may have a refund policy addressing a student's cancellation or failure to complete a course, as long as that policy is made clear to potential students. (6) A sponsoring organization must provide proof of course completion to each course participant who successfully completes the approved course of study within one month of course completion or prior to the end of the calendar year during which the participant completed the course. The department may grant the sponsoring organizations up to two months to provide such proof of course completion, if the sponsoring organization notifies the course participants in writing, in advance of the course. (7) Sponsoring organizations who add qualified course instructors after a course is approved must submit the names of those instructors to the department at least three days prior to the course offering. (8) Course approval is for a period of two years following the course approval date. (9) Sponsoring organizations must resubmit courses for new review and certification whenever significant changes in course content are made. (10) The minimum number of credits that the department may award is one credit. (11) No course may be advertised as having been approved for credit by the department until the sponsoring organization receives written approval from the department. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule indicating requirements for course approval. NEW RULE XI QUALIFICATIONS FOR INSTRUCTORS (1) Instructors must meet the following qualifications for the department to approve the course: (a) a high school diploma or equivalent certificate; (b) experience in at least one of the following: (i) three or more years of managerial, supervisory, technical, or teaching experience as a subject matter expert; (ii) appropriate national designations; or (iii) approval on an exception basis by the department. (2) An instructor may be disqualified if that person has: (a) intentionally falsified documents filed with the department; or (b) intentionally misrepresented course approval, credit hour assignment, curriculum, or course content to students or prospective students. (3) Certified claims examiners teaching or lecturing approved courses will be credited with two times the number of approved credit hours of courses they instruct. (4) Proctors will not earn continuing education credit for their services. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt minimum qualifications for course instructors. NEW RULE XII FEES FOR CERTIFICATION, EXAMINATION, RENEWAL, AND COURSE SUBMISSION (1) The fees for processing an initial two-year certification shall be $100 per applicant payable at the time of the application. (2) Each examination fee will not exceed $75 payable prior to the examination. (3) The certification renewal fee shall be $75 per applicant payable at the time of renewal. If there is a lapse in certification, the fee for renewal will be $100 payable at the time of the application. (4) The fee for course submissions shall be $75 per application. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt fees for certification, examination, renewal, and course submission. The department estimates that approximately 100 persons will apply to become certified workers' compensation claims examiners during the first two years of the certification program. The department estimates that during the first two years of the program, 50 applicants will take the examination, while the remainder will be certified without examination, as allowed by statute. The department estimates that the aggregate application and examination fees that will be collected during the initial two year period will be approximately $13,750. In addition, the department estimates that during the first two years of the program, approximately 10 persons or entities will submit 25 courses for approval (new examiner course and renewal course approvals), generating fees of $1,875. The total fees expected to be generated by the proposed rule (for the initial two year period) is estimated at $15,625, to be paid by 110 persons. All of the proposed fees are new fees, implementing the new statutory program. As required by Chap. 125, section 2, subsection (8), L. of 2009, the fees are set at a level projected to be commensurate with cost. NEW RULE XIII MAINTENANCE OF CERTIFICATION DOCUMENTATION (1) The department may maintain the records required by [Chap. 125, section 2, L. of 2009], in an electronic format. AUTH: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 IMP: 39-71-105, MCA; Chap. 125, section 2, L. of 2009 REASON: There is reasonable necessity to adopt a rule to indicate the department will be maintaining the records in electronic format. 5. 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: Employment Relations Division, Department of Labor and Industry, Attn: Diana Ferriter, P.O. Box 8011, Helena, MT 59604-8011; fax (406) 444-4140; TDD (406) 444-0532; or e-mailed to diferriter@mt.gov, and must be received no later than 5:00 p.m., August 28, 2009. 6. 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. 7. 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 that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program or areas of law the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the Department of Labor and Industry, attention: Mark Cadwallader, 8. The bill sponsor notice requirements of 2-4-302, MCA, apply and have been fulfilled. The bill sponsor was contacted by telephone and in writing by regular mail on May 4, 2009 and throughout the drafting process pursuant to the requirements of Chapter No. 21 passed during the 2009 legislative session. 9. The department's Hearings Bureau has been designated to preside over and conduct this hearing. /s/ VIVIAN V. HAMMILL /s/ KEITH KELLY Vivian V. Hammill Keith Kelly, Commissioner Alternate Rule Reviewer DEPARTMENT OF LABOR AND INDUSTRY Certified to the Secretary of State July 20, 2009
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