BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY
OF THE STATE OF MONTANA
In the matter of the adoption of NEW RULES I through VI pertaining to stay at work/return to work for workers' compensation
NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION
TO: All Concerned Persons
1. On May 18, 2012, at 1:00 p.m., the Department of Labor and Industry will hold a public hearing in the basement auditorium of the DPHHS Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption of the above-stated rules.
2. The Department of Labor and Industry will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Labor and Industry no later than 5:00 p.m. on May 14, 2012, to advise us of the nature of the accommodation that you need. Please contact the Employment Relations Division, Department of Labor and Industry, Attn: Jason Swant, P.O. Box 8011, Helena, MT 59604-8011; telephone (406) 444-1748; fax (406) 444-4140; TDD (406) 444-5549; or e-mail email@example.com .
3. GENERAL STATEMENT OF REASONABLE NECESSITY: The proposed administrative rules implement the stay at work/return to work (SAW/RTW) program, which was established by the 2011 Montana Legislature by Chapter 167, L. 2011 (House Bill 334).
The department's Employment Relations Division involved stakeholder groups in the drafting of the proposed new rules. Representatives of workers' compensation insurers; self-insured employers; the Montana State Fund; vocational rehabilitation providers; and advocates for injured workers participated in the stakeholder rule review process. The stakeholders expressed general agreement with the proposed rules.
The department considered but rejected various rule provisions to facilitate seamless delivery of SAW/RTW assistance following the initiation of services by the department. Because the insurer must accept financial responsibility for all SAW/RTW assistance after the insurer accepts liability for the injured worker's workers' compensation claim, the department determined that the most expedient action is for the department to immediate transfer responsibility for the provision of assistance to the insurer. Pursuant to § 39-71-1006(5), MCA, the insurer may designate the same rehabilitation provider, who had been assigned to the injured worker by the department, to continue to provide services to the injured worker at the insurer's expense.
The proposed new rules clarify the obligations of the department and insurers in assisting injured workers to stay at work after a work-related injury or to return to work as soon as possible with the time-of-injury employer following an injury or occupational disease. Transitional employment is defined by the proposed new rules to include alternate work duties and reduced work hours.
SAW/RTW assistance provided by the department will be supported through an assessment upon all Montana employers. The proposed new rules clarify that the department will assign a vocational rehabilitation counselor to deliver SAW/RTW services when the insurer cannot be identified or declines to provide assistance prior to the insurer accepting liability for the injured worker's workers' compensation claim. The proposed new rules outline the financial assistance available to employers from the department to accomplish workplace modifications or purchase equipment, for the purpose of allowing an injured worker to remain in or return to transitional employment with the time-of-injury employer.
The proposed new rules set out the department's system for tracking assistance outcomes for injured workers and require insurers to provide consistent outcome reporting information to the department. The department plans to conduct annual evaluations of the efficacy of the SAW/RTW program, and consistent and timely outcome reporting is critical.
The department proposes to make the proposed rule adoptions effective as of July 1, 2012, subject to input from comments received. The department reserves the right to make the adoptions effective at a later date, or not at all. The department reserves the right to adopt or amend the proposed new rules identified in this notice.
After adoption of the rules, any updates or changes to these rules will be undertaken by the department according to the requirements of the Montana Administrative Procedure Act.
This general statement of reasonable necessity applies to all of the rules proposed for adoption and will be supplemented as necessary for any given rule.
4. The rules as proposed to be adopted provide as follows:
NEW RULE I DEFINITIONS As used in this subchapter, the following definitions apply:
(1) "Health care provider" means a person who is licensed, certified, or otherwise authorized by the laws of this state to provide health care in the ordinary course of business or practice of a profession, as defined in 39-71-116, MCA.
(2) "Injured worker" means an individual who has filed a claim for a workers' compensation injury or occupational disease. The term "injured worker" includes an individual who meets the definition of a disabled worker set forth by 39-71-1011, MCA.
(3) "Insurer" means an employer bound by compensation plan No. 1, an insurance company transacting business under compensation plan No. 2, or the state fund under compensation plan No. 3, as defined in 39-71-116, MCA.
(4) "Medical status form" means the department reporting form completed by an injured worker's treating physician or designee, which documents an injured worker's medically necessary work restrictions and work abilities.
(5) "Outcome report form" means the department reporting form completed by an insurer or vocational rehabilitation counselor, which documents the results for the injured worker of SAW/RTW assistance.
(6) "Request" means a request for SAW/RTW assistance by letter, email, or telephone call to the department or insurer. A request must include, at a minimum, the name of the injured worker, the requestor's name and requestor's telephone number. A note in a medical record does not constitute a request.
(7) "SAW/RTW" means stay at work/return to work.
(8) "Time-of-injury employer" means the employer under whose employment a worker was injured or developed an occupational disease.
(9) "Transitional employment" means work for the injured worker with the time-of-injury employer offered by the employer for a temporary period of time, and may include a reduction in hours, workplace modifications, and alternative job duties.
(10) "Vocational rehabilitation counselor" means a rehabilitation provider who possesses current certification from the Commission on Rehabilitation Counselor Certification, as defined in 39-71-1011, MCA.
AUTH: 39-71-203, 39-71-1051, MCA
IMP: 39-71-105, 39-71-116, 39-71-1011, 39-71-1036, MCA
NEW RULE II RESPONSIBILITIES OF THE INSURER (1) Each insurer shall adopt a SAW/RTW policy and submit a current, complete copy of the policy to the department. The insurer shall provide the department with all SAW/RTW policy updates a minimum of ten business days in advance of implementation of policy change.
(2) The insurer shall designate a single point of contact to coordinate all department requests for SAW/RTW assistance for injured workers and shall provide the department with written notice of the contact person's name, telephone number, email address, and mailing address. When contact information changes, the insurer shall update the department a minimum of ten business days in advance of the change.
(3) When a request for SAW/RTW assistance is made directly to the insurer prior to the insurer's acceptance of liability for a claim, the insurer may elect to provide SAW/RTW assistance to the injured worker or it may refer the injured worker to the department for assistance.
(4) When the insurer declines to provide SAW/RTW assistance or denies liability for an injured worker's claim, the insurer shall notify the injured worker and the department in writing within three business days of a request for assistance.
(5) After the department has initiated SAW/RTW assistance to an injured worker, the insurer shall notify the department in writing within three business days of the insurer's acceptance of liability for an injured worker's claim.
(6) For notice purposes, the department's contact information is:
(a) via email, firstname.lastname@example.org;
(b) via fax machine, (406)-444-4140;
(c) via U.S. mail, SAW/RTW Assistance Program, P.O. Box 8011, Helena, MT 59604-8011; or
(d) via the street address is Employment Relations Division, Beck Building, 1805 Prospect Avenue, Helena, Montana.
(7) Notice sent by U.S. mail must be postmarked within the three business days required by this rule.
(8) The insurer shall report the outcome of SAW/RTW assistance to the department, using the department outcome reporting form, within 30 business days of the earliest of:
(a) the return to work start date;
(b) the termination of SAW/RTW services; or
(c) the injured worker's attainment of maximum medical improvement.
AUTH: 39-71-203, 39-71-1051, MCA
IMP: 39-71-105, 39-71-1014, 39-71-1031, 39-71-1042, MCA
REASON: Proposed New Rule II sets forth strict time limits within which notice must be provided by the insurer to the injured worker and department to make certain communication between the insurer, injured worker and department occurs in a timely manner. The time requirements of proposed New Rule II further the statutory directive that the worker return to work as soon as possible after an injury or an occupational disease occurs. Because the at-risk insurer is legally bound to provide SAW/RTW assistance only after accepting liability for a workers' compensation claim, the proposed rule clarifies that the insurer may refer an injured worker to the department for assistance. The requirement that all insurers adopt written SAW/RTW policies and share those policies with the department is for the purpose of ensuring consistency in assistance delivery. The single point of contact for insurer communication with the department is for the purpose of facilitating and expediting the flow of information. When the at-risk insurer declines to provide SAW/RTW assistance to an injured worker prior to the insurer's acceptance of liability for the claim, the department must be informed quickly because the injured worker then is entitled to assistance provided by the department.
NEW RULE III DUTIES OF THE DEPARTMENT (1) An injured worker is eligible for SAW/RTW assistance upon receipt by the department of a request for assistance from the injured worker, employer or health care provider.
(2) When the department is unable to identify the insurer within three business days of receiving a request for SAW/RTW assistance, the department shall provide assistance to the injured worker. When the department identifies the at-risk insurer after the department has initiated assistance, the department shall continue to provide SAW/RTW services to the injured worker when the insurer declines to provide SAW/RTW assistance or fails to respond to department notice of the initiation of services. The department shall provide services until it:
(a) terminates SAW/RTW services to the injured worker upon notice of insurer denial of liability for the claim;
(b) terminates SAW/RTW services to the injured worker upon exhaustion of the maximum allowed provider fees, as provided in [NEW RULE IV]; or
(c) transfers responsibility for the delivery of SAW/RTW assistance to the insurer upon notice of the insurer's acceptance of liability for the claim
(3) When the department provides SAW/RTW assistance, the department shall assign a vocational rehabilitation counselor to each eligible injured worker to provide services which may include, but are not limited to, the following:
(a) personal contact with injured worker to assess the worker's commitment and ability to stay at or return to work;
(b) identification of barriers to the injured worker staying at or returning to work;
(c) review of the injured worker's medical status form to ensure worker's understanding of work abilities and restrictions;
(d) personal contact with injured worker's employer to establish employer's ability to provide transitional employment that meets injured worker's abilities, as outlined by the medical status form;
(e) facilitation of communication between injured worker and employer regarding offer and acceptance of transitional employment;
(f) communication with injured worker's treating physician or designee regarding the assessment and approval of transitional employment when approval is not explicitly provided by medical status form;
(g) verification that duties assigned by employer to injured worker during transitional employment conform with abilities outlined by the medical status form;
(h) identification of concerns of the injured worker and employer and problem-solving throughout the process of establishing transitional employment; and
(i) monitoring injured worker's readiness and ability to return to time of injury job and providing appropriate interventions as needed.
(4) The department shall provide written notice to the injured worker, employer and insurer, if identified, when a vocational rehabilitation counselor is assigned by the department to provide SAW/RTW services to an injured worker. The notice shall be mailed within three business days of the assignment of a vocational rehabilitation counselor.
(5) The department shall provide written notice to the injured worker, employer and insurer of the completion of department-provided SAW/RTW assistance within three business days of the completion of services.
AUTH: 39-71-203, 39-71-1051, MCA
IMP: 39-71-105, 39-71-1031, 39-71-1041, 39-71-1042, 39-71-1043, MCA
REASON: The department must coordinate the provision of SAW/RTW assistance with the insurer. Proposed New Rule III delineates who may request the assistance. The proposed new rule establishes that the department will provide SAW/RTW assistance to an injured worker when the at-risk insurer is not identified, has failed to respond to department notice, or has not accepted liability for a claim and declines to provide services within the time frame of three business days following a request for assistance. The rule also clarifies that the insurer is responsible for providing all SAW/RTW assistance as soon as the insurer accepts liability for an injured worker's workers' compensation claim. The department is responsible for communicating with the injured worker, employer, and insurer within specific, limited time frames to facilitate the statutory goal of returning the injured worker to work as soon as possible.
NEW RULE IV PAYMENT SCHEDULE FOR DEPARTMENT-PROVIDED SAW/RTW ASSISTANCE (1) The department shall pay vocational rehabilitation counselors for SAW/RTW services in accordance with the following fee schedule:
(a) a maximum of $90 per hour for services provided, billed in 1/10 hour increments;
(b) travel time of four (4) hours or less at one-half the hourly rate;
(c) travel time over four (4) hours at two-thirds the hourly rate; and
(d) mileage, lodging and meals at the State of Montana per diem rate established pursuant to Title 2, chapter 18, part 5, MCA.
(2) The department shall pay a maximum of $2,000.00 per claim to a certified vocational rehabilitation counselor for SAW/RTW services, not including mileage, lodging and meals.
(3) When the department provides the assistance, the department may pay up to $2,000.00 to assist an employer in modifying the workplace or purchasing equipment required for the employer to provide transitional employment. Any such equipment or workplace modifications become the property of the employer. To apply for financial assistance, the employer must submit a written application to the department that includes, at a minimum, the following:
(a) a written recommendation from the department-designated vocational rehabilitation counselor, which specifically describes the required workplace modification or equipment;
(b) the estimated cost of the recommended workplace modification; and
(c) the estimated cost of the recommended equipment.
(4) The department may deny an employer's application for financial assistance when the department determines the application is incomplete or the request for assistance is unreasonable. The department will notify the employer as to whether the application is accepted or rejected, and the reasons for the action.
AUTH: 39-71-203, 39-71-1049, 39-71-1051, MCA
IMP: 39-71-105, 39-71-1042, 39-71-1049, MCA
REASON: The Legislature granted rulemaking authority to the department in § 39-71-1049 (3), MCA, to establish a fee schedule for SAW/RTW assistance. Proposed New Rule IV clarifies that this fee schedule only applies to SAW/RTW assistance provided by the department. The department's research showed that vocation rehabilitation counselors in Montana charge from $80 to $120 per hour. The department has determined that the insurer with the most insured employers in the state currently pays rehabilitation providers at the rate of $85/hour. Based upon that rate, the department believes that a maximum rate of $90/hour is reasonable. Proposed New Rule IV recognizes that returning an injured worker to work may require specialized equipment or workplace modifications and outlines the availability of financial assistance for employers to implement the rehabilitation provider's SAW/RTW recommendations.
NEW RULE V VOCATIONAL REHABILITATION COUNSELOR POOL FOR DEPARTMENT-PROVIDED SAW/RTW ASSISTANCE (1) The department shall obtain qualified vocational rehabilitation counselors under contract to provide SAW/RTW services to injured workers.
(2) When the department provides SAW/RTW assistance, the department shall assign a vocational rehabilitation counselor to provide services to each eligible injured worker.
(3) The department shall select an appropriate vocational rehabilitation counselor for each injured worker, using the following criteria:
(a) geographical proximity to the injured worker's residence;
(b) ability to accept and promptly provide services to an injured worker; and
(c) specialized expertise and pertinent experience with the type of injury or challenges to returning to work faced by the injured worker.
(4) The vocational rehabilitation counselor shall notify the department of the services provided, the progress toward transitional employment and assistance outcomes, as specified by the contract with the department.
(5) The department shall periodically request proposals from vocational rehabilitation counselors and execute contracts for services with qualified applicants.
AUTH: 39-71-203, 39-71-1051, MCA
IMP: 39-71-105, 39-71-1043, MCA
REASON: In order for the department to provide SAW/RTW assistance through a rehabilitation provider, the department must comply with state procurement regulations. Proposed New Rule V explains that the department will engage in a request-for-proposal process to establish contracts with vocational rehabilitation counselors. Proposed New Rule V describes the process the department will use to assign a rehabilitation provider to each injured worker who requests assistant and outlines the reporting responsibilities of the vocational rehabilitation counselors to facilitate the gathering of statistical information regarding the efficacy of SAW/RTW assistance for department analysis.
NEW RULE VI APPLICABILITY (1) SAW/RTW assistance, pursuant to this subchapter, is applicable to workers who experience a work-related injury or occupational disease on or after July 1, 2012.
AUTH: 39-71-203, 39-71-1051, MCA
IMP: 39-71-105, 39-71-1011, 39-71-1031, 39-71-1041, 39-71-1042, 39-71-1043, 39-71-1049, MCA
REASON: The 2011 Montana Legislature by Sections 15-23, Chapter 167, L. 2011 (House Bill 334) established the effective date of the statutory framework for the stay at work/return to work program as July 1, 2012. The department concludes that there is reasonable necessity to adopt New Rule VI in order to make it clear to injured workers that the SAW/RTW provisions apply only to injuries or occupational disease cases arising on or after the effective date of those statutes.
4. Concerned persons may submit 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: Jason Swant, P.O. Box 8011, Helena, MT 59604-8011; telephone (406) 444-1748; fax (406) 444-4140; TDD (406) 444-5549; or e-mail email@example.com .
and must be received no later than 5:00 p.m., May 25, 2012.
5. The Hearings Bureau of the Department of Labor and Industry has been designated to preside over and conduct this hearing.
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, 1315 E. Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, e-mailed to firstname.lastname@example.org, or may be made by completing a request form at any rules hearing held by the agency.
8. The bill sponsor notice requirements of § 2-4-302, MCA, do apply and have been fulfilled. Representative Scott Reichner, the primary sponsor of House Bill 334, was contacted by Diana Ferriter, Employment Relations Division bureau chief, on March 19, 2012, and provided notice that work was beginning on the substantive content and wording of the proposed new rules presented in this notice. Ms. Ferriter contacted Representative Reichner again on April 4, 2012, and shared electronic copies of the draft administrative rules prior to publication. All comments received from Representative Reichner were taken into account in drafting the proposed rules.
/s/ Mark Cadwallader /s/ Keith Kelly
Mark Cadwallader Keith Kelly
Alternate Rule Reviewer Commissioner
Department of Labor and Industry
Certified to the Secretary of State April 16, 2012.