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| Montana Administrative Register Notice 24-29-412 | No. 9 05/10/2024 | |
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BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY STATE OF MONTANA
TO: All Concerned Persons
1. On March 8, 2024, the Department of Labor and Industry (agency) published MAR Notice No. 24-29-412 regarding the public hearing on the proposed changes to the above-stated rules, at page 398 of the 2024 Montana Administrative Register, Issue No. 5.
2. On March 28, 2024, a public hearing was held on the proposed changes to the above-stated rules via the videoconference and telephonic platform. Comments were received by the deadline.
3. The agency has thoroughly considered the comments received. A summary of the comments and the agency responses are as follows:
COMMENT 1: Commenters noted that ARM 24.29.4332 was amended to include attorney fees from settlements as a cost, but that fees and costs are distinct. They further noted that fees were addressed in ARM 24.29.4332(6)(a).
RESPONSE 1: The department agrees that clarity would be enhanced by including specificity as to settlements in (6)(a) rather than (6)(b), and the rule is amended as set forth below.
COMMENT 2: A commenter stated that they support most of the proposed changes.
RESPONSE 2: The comment is acknowledged.
COMMENT 3: A commenter suggested that amendments proposed to ARM 24.29.3802 should be made to (2)(a) instead of (2)(b). The commenter further suggested that departmental processes be reviewed.
RESPONSE 3: The department disagrees that the proposed modification would assist in clarity. Subsection (2)(b) addresses settlement petitions to the Workers' Compensation Court. As such, limitations on those petitions are appropriately placed in the subsection. The department is nonetheless consistently reviewing internal processes for improvement. Such is outside the scope of this rulemaking. However, the commenter is invited to engage in a constructive dialogue should they so choose.
COMMENT 4: A commenter suggested that ARM 24.29.3127 represents a constitutional violation because the burden for production of records should be on the insurer. The commenter recognizes that the rules provide additional clarity.
RESPONSE 4: The department agrees that the proposed amendments provide greater clarity. The department does not at this time opine on the constitutionality of the statutory structure regarding medical reopening and closing.
COMMENT 5: A commenter thanked the department for amendments made to ARM 24.29.720.
RESPONSE 5: The comment is acknowledged.
COMMENT 6: A commenter thanked the department for amendments to ARM 24.29.2614 in that reserve reporting would be voluntary. The commenter further suggested that the department not analyze or spend time collecting this information because they question the validity of reserves based on different calculations.
RESPONSE 6: The comment is acknowledged. To the extent the comment engages with departmental business process, the comment is outside the scope of the rulemaking.
COMMENT 7: A commenter suggested that ARM 24.29.1401(3) and (4) be retained because they provide guidance for rules without copying the statute or being extra-statutory. The commenter suggested that the statute does not address balance billing nor does it provide that injuries outside of workers' compensation are not covered by workers' compensation.
RESPONSE 7: The department disagrees. Section 39-71-743(3), MCA sets forth that work compensable injuries must be paid by the liable insurer. Section 39-71-704(11), MCA sets forth the only liabilities for injured workers on accepted claims. The rule text sought to be retained by the commenter duplicates these statutory requirements.
COMMENT 8: A commenter suggested that ARM 24.29.1512(2) be retained. The commenter suggested that the rule is helpful in that it provides that emergency room visits are not the same as the selection of a treating provider and provides guidance for the selection of a treating physician.
RESPONSE 8: The department disagrees. The rule, as proposed to be amended, continues to reflect that emergency room visits are permissible and do not constitute selection of a treating physician. Criteria for the selection of treating physicians continue to be unnecessary.
COMMENT 9: A commenter suggested that ARM 24.29.821(2)(a) should be retained because individuals under the age of 18 should not be permitted to be claims examiners due to their age.
RESPONSE 9: The department disagrees. The age limitation constitutes an unnecessary barrier to entry into the field of claims examination. Whether an individual is capable of performing the functions of a claims examiner should be left to the discretion of the entity hiring the position and to the ability to pass the claims examiner certification examination, rather than subject to the artificial limitation of administrative rule.
COMMENT 10: A commenter suggested that ARM 24.29.1501 should be retained because it sets forth the purpose of the utilization and treatment guidelines. The commenter agrees that the rule is duplicative of statute, but believes it makes the administrative rules more interpretable for readers.
RESPONSE 10: The department disagrees. The rule is substantially duplicative of statute, and administrative rules should not be unnecessarily duplicative of statute. The department disagrees that a generalized statement of purpose is useful in the interpretation or understanding of administrative rules.
COMMENT 11: A commenter suggested that ARM 24.29.801(1) should be amended to clarify its applicability to employers covered by plan 2 or 3 insurers.
RESPONSE 11: The department agrees. While non-coverage of plan 1 insurers is implied, further clarity could be gained. The rule is amended below.
COMMENT 12: A commenter suggested that the catchphrase of ARM 24.29.2614 should be amended to strike the word "settlements." The comment noted that the rule does not have much to do with settlements, and clarity could be enhanced without the word.
RESPONSE 12: The department agrees. The rule is amended below.
4. The agency has amended ARM 24.29.601, 24.29.604, 24.29.607, 24.29.611, 24.29.616, 24.29.617, 24.29.618, 24.29.621, 24.29.624, 24.29.628, 24.29.703, 24.29.720, 24.29.721, 24.29.813, 24.29.816, 24.29.818, 24.29.821, 24.29.824, 24.29.831, 24.29.837, 24.29.841, 24.29.844, 24.29.908, 24.29.1201, 24.29.1202, 24.29.1512, 24.29.1513, 24.29.1515, 24.29.1523, 24.29.1534, 24.29.1538, 24.29.1601, 24.29.1611, 24.29.1616, 24.29.1621, 24.29.1710, 24.29.1725, 24.29.1741, 24.29.2605, 24.29.2607, 24.29.2610, 24.29.2831, 24.29.2841, 24.29.2843, 24.29.2853, 24.29.3101, 24.29.3103, 24.29.3127, 24.29.3802, 24.29.4303, 24.29.4307, 24.29.4314, 24.29.4321, 24.29.4336, and 24.29.4339 as proposed.
5. The agency has adopted NEW RULE I (24.29.235), NEW RULE II (24.29.230), NEW RULE III (24.29.635), NEW RULE IV (24.29.975), NEW RULE V (24.29.980), NEW RULE VI (24.29.2380), and NEW RULE VII (24.29.3105) as proposed.
6. The agency has repealed ARM 24.29.205, 24.29.206, 24.29.207, 24.29.213, 24.29.215, 24.29.608, 24.29.610, 24.29.622, 24.29.623, 24.29.627, 24.29.704, 24.29.709, 24.29.713, 24.29.804, 24.29.851, 24.29.902, 24.29.907, 24.29.929, 24.29.954, 24.29.956, 24.29.962, 24.29.971, 24.29.1401, 24.29.1501, 24.29.1510, 24.29.1517, 24.29.1522, 24.29.1526, 24.29.1533, 24.29.1701, 24.29.1705, 24.29.1761, 24.29.2002, 24.29.2003, 24.29.2301, 24.29.2303, 24.29.2311, 24.29.2321, 24.29.2323, 24.29.2326, 24.29.2329, 24.29.2331, 24.29.2336, 24.29.2339, 24.29.2341, 24.29.2346, 24.29.2351, 24.29.2356, 24.29.2361, 24.29.2366, 24.29.2371, 24.29.2373, 24.29.2376, 24.29.2379, 24.29.2602, 24.29.2701, 24.29.2811, 24.29.2839, 24.29.2846, 24.29.2849, 24.29.2851, 24.29.2855, 24.29.3107, 24.29.3111, 24.29.3114, 24.29.3117, 24.29.3121, 24.29.3124, 24.29.4301, 24.29.4311, 24.29.4317, 24.29.4322, and 24.29.4329 as proposed.
7. The agency has amended ARM 24.29.801, 24.29.2614, and 24.29.4332 with the following changes, stricken matter interlined, new matter underlined:
24.29.801 ACCIDENT REPORTING (1) (2) and (3) remain as proposed.
AUTH: 39-71-203, 39-71-307, MCA IMP: 39-71-307, 39-71-603, MCA
24.29.2614 REIMBURSEMENT PROCESS
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
24.29.4332 CLAIMANT LEGAL FEES AND COSTS REPORTING REQUIREMENTS (1) through (6) remain as proposed. (a) the total amount of legal fees paid to date by the claimant or on behalf of a claimant, including the amount of attorney fees received pursuant to a settlement; and (b) remains as proposed.
AUTH: 39-71-203, MCA IMP: 39-71-225, MCA
8. The effective date of amendments to ARM 24.29.721 is July 1, 2024.
Certified to the Secretary of State April 30, 2024.
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