Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

OF THE STATE OF MONTANA

In the matter of the adoption of New Rules I through III, the amendment of ARM 24.29.804, 24.29.813, 24.29.821, 24.29.824, 24.29.831, 24.29.834, 24.29.837, and 24.29.847, and the repeal of ARM 24.29.811, 24.29.817, and 24.29.827, pertaining to certification of workers' compensation claims examiners

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

TO: All Concerned Persons

1. On October 11, 2019, at 10:00 a.m., the Department of Labor and Industry (department) will hold a public hearing in conference rooms A and B of the Beck Building, 1805 Prospect Avenue, Helena, Montana, to consider the proposed adoption, amendment, and repeal 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 October 4, 2019, to advise us of the nature of the accommodation that you need. Please contact Jason Swant, Employment Relations Division, P.O. Box 8011, Helena, Montana 59604; telephone (406) 444-6451; facsimile (406) 444-4140; Montana TTD (406) 444-5549; or e-mail [email protected].

3. GENERAL STATEMENT OF REASONABLE NECESSITY: There is reasonable necessity to adopt New Rules I through III, amend eight existing rules, and repeal three rules related to certified claims examiners to implement the provisions of Chapter 371, Laws of 2019 (House Bill 757). The rules reflect the change from a voluntary system of certification for workers' compensation claims examiner to a mandatory system, as provided for by House Bill 757. The combination of the proposed new rules, proposed amendments, and proposed repeals are reasonably necessary to help ensure that all the rules related to certified workers' compensation claims examiners are consistent and complete for the mandatory claims examiner certification process. Additional statements of reasonable necessity are provided below addressing each of the proposed rule changes.

4. The proposed new rules are as follows:

NEW RULE I DECISIONS WHICH MUST BE MADE BY A CERTIFIED CLAIMS EXAMINER (1) Except as provided by [NEW RULE II] and this rule, only a certified claims examiner may perform the tasks identified by 39-71-116, MCA, as being the responsibility of a claims examiner. As provided by 39-71-116, MCA, those tasks are to:

(a) determine liability;

(b) apply the requirements of the Workers' Compensation Act;

(d) determine survivor benefits.

(2) After an insurer or its agent has accepted liability for the claim or has begun paying benefits under a reservation of rights (including pursuant to 39-71-608, MCA), a certified claims examiner is responsible for making any decision that denies, reduces, or changes the type or level of benefits being provided to an injured worker or the survivors of an injured worker.

(3) Examples of decisions made under (2) include, but are not necessarily limited to:

(a) changing the disability status of a worker; and

(b) denying medical benefits.

(4) A person does not violate this rule if under the following circumstances, a person not certified as a claims examiner denies initial liability on a new claim, when the first report of injury clearly shows that the alleged incident has not resulted in:

(a) professional medical evaluation or treatment;

(b) loss of work exceeding the shift during which the accident occurred; or

(5) A claim denied under the circumstances described in (4) must identify in the denial letter the certified claims examiner who is accountable for the decision to deny the claim.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-107, 39-71-116, 39-71-320, MCA

REASON: There is reasonable necessity to adopt NEW RULE I to describe what actions in handling a workers' compensation claim must be performed by a certified claims examiner. By exclusion, other tasks related to claim handling may be performed by a person who is not a certified claims examiner (e.g., a "claims assistant" or "claims technician").

NEW RULE II NEW HIRES AND CLAIMS EXAMINER TRAINEES – DESIGNATION OF CERTIFIED CLAIMS EXAMINER TO BE ACCOUNTABLE FOR DECISIONS (1) A new hire may, for a period of not more than 60 days, perform tasks otherwise required to be performed by a certified claims examiner, if the employer has designated a certified claims examiner as being accountable for the decisions made by the new hire.

(2) A claims examiner trainee may, for a period of not more than 180 days, perform tasks otherwise required to be performed by a certified claims examiner, if the employer has designated a certified claims examiner as being accountable for the decisions made by the claims examiner trainee.

(3) The employer of a new hire or claims examiner trainee must maintain documentation for each claim being handled by a new hire or claims examiner trainee, of the certified claims examiner who is accountable for the decisions made by that new hire or claims examiner trainee.

(a) The employer may change the certified claims examiner designated as being accountable for decisions on a claim being handled by a new hire or claims examiner trainee at any time, so long as that change is appropriately documented within the insurer's records.

(b) The documentation required by this section must be promptly made available to the department, the injured worker, or the attorney of an injured worker, if that information is requested in writing.

(4) A person who is a new hire or claims examiner trainee that does not timely become a certified claims examiner is not allowed to perform tasks that are required to be performed by a certified claims examiner.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to adopt NEW RULE II to implement the provisions of House Bill 757 that provide for new hires and training positions. The department considered, but rejected, providing a specific list of topics or curricula for an insurer's training program, and has concluded that each insurer should be free to implement whatever training program it deems appropriate. To ensure that new hires and trainees are appropriately handling claims, the department is requiring that each insurer (or third-party administrator) designate a certified claims examiner who will be accountable for the claims decisions made by a new hire or trainee. The amount or level of oversight required by the designated certified claims examiner is not specified by rule, but each insurer or third-party administrator (TPA) has an obvious self-interest in making sure that its claims are handled in an appropriate manner, lest it incur liability for unreasonable handling in a specific claim, or as a general claims handling practice.

NEW RULE III REPORTING OF EMPLOYMENT STATUS OR CHANGE OF ADDRESS TO THE DEPARTMENT (1) A certified claims examiner must report to the department, within 20 days of the event:

(a) the name and address of an insurer or third-party administrator who has hired the person to be employed as a certified claims examiner, and the date of hire;

(b) the date of separation of employment from that employer; and

(2) An insurer or third-party administrator must report to the department, within 20 days of the event, the name and date of hire of any person who will be working as a claims examiner for the employer as either a:

(a) new hire; or

(b) claims examiner trainee.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to adopt NEW RULE III to clarify who has the responsibility of notifying the department of a certified claims examiner's contact information and employment status. Insurers or TPAs have the responsibility to notify the department when the insurer or TPA hires a person who will perform claims examiner tasks as a new hire or trainee.

5. The rules proposed to be amended are as follows, stricken matter interlined, new matter underlined:

24.29.804 EXAMINERS AND THIRD-PARTY ADMINISTRATORS IN MONTANA (1) All workers' compensation and occupational disease claims filed pursuant to the Montana Workers' Compensation and Occupational Disease Acts must be adjusted by a ~~person~~ certified claims examiner in Montana. For the purposes of this rule, a claim is deemed to be "adjusted by a person in Montana" if the person who can determine entitlement to benefits, authorize payment of all benefits due, manage the claim and has authority to settle the claim, maintains a certified claims examiner must maintain an office that is located in Montana and ~~adjusts~~ adjust Montana claims from that office. The office may be in the examiner's personal residence located in Montana. The sole use of a mail box or mail drop located in Montana does not constitute maintaining an office in Montana.

(2) An insurer must maintain the documents related to each claim filed with the insurer under the Montana Workers' Compensation and Occupational Disease Acts at the office of the person adjusting the claim in Montana until the claim is settled. The documents may either be original documents, or duplicates of the original documents, and must be maintained in a manner which allows the documents to be retrieved from that office and copied at the request of the claimant or the department. Settled claim files stored outside of the certified claims examiner's office must be made available by the insurer within 48 hours of a request for a file. Electronic or optically imaged documents are permitted by this rule.

(3) and (4) remain the same.

(5) The insurer may delegate the duty to notify the department to a third-party administrator ~~or policyholder~~.

(6) remains the same.

AUTH: 39-71-107, 39-71-203, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.804 to reference the obligation of an insurer to use a certified claims examiner for compliance with the in-state adjuster statute, and to add 39-71-320, MCA, to the implementing citations. Certain terms are being deleted because the subject of those terms is addressed elsewhere in the certified claims examiner rules. In addition, there is reasonable necessity to add 39-71-320, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.813 DEFINITIONS For purposes of this subchapter, the following definitions apply:

(1) and (2) remain the same.

(3) "Certified claims examiner" means a claims examiner who is in compliance with the requirements of 39-71-320, MCA.

(3) remains the same but is renumbered (4).

~~(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) remains the same.

(6) "Hour," for the purposes of continuing education credits, means a 50-minute period.

(6) remains the same but is renumbered (7).

(8) "New hire" means a person who has:

(a) not been previously employed by the insurer or third-party administrator as a claims examiner;

(b) been separated from employment with the insurer or third-party administrator for at least 60 days and is required to complete new hire paperwork such as a Form I-9 or Form W-4; or

(7) and (8) remain the same but are renumbered (9) and (10).

~~(9)~~ (11) "Self-study" means those independent study methods taught outside the classroom setting through approved text~~, audiotape materials, videotape materials~~ or prerecorded audio or video content, or another method of information exchange where both the means and content are approved by the department.

(10) and (11) remain the same but are renumbered (12) and (13).

(14) "Trainee" means an employee who has no prior claims examiner experience and is participating in a program by which the employer prepares the trainee to carry out the essential functions of a certified claims examiner.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.813 to define various terms related to the provisions of House Bill 757, and to update existing language to better reflect current continuing education technology. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.821 CERTIFICATION OF CLAIMS EXAMINERS (1) through (1)(c) remain the same.

(d) satisfactory completion of ~~either~~ an examination ~~or meeting the waiver requirements as provided in ARM 24.29.827~~.

(2) remains the same.

(3) Certification ~~will be~~ is for a two-year period. The certification date ~~shall be~~ is 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: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.821 to delete the reference to waiver of examination, and to remove now-redundant language in the rule to implement the provisions of House Bill 757. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.824 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 ARM 24.29.827~~.

(2) through (2)(b) remain the same.

(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) remains the same.

(4) A passing score on an examination ~~shall be~~ is at least 80 percent ~~or greate~~r.

(a) An applicant for claims examiner certification may ~~retake an~~ take the examination ~~as many times as necessary to pass the examination with a score of 80 percent or greater~~ up to three times in a 180-day period. If an applicant does not pass the examination within that 180-day period, the applicant must wait 60 days before taking the examination again.

(b) The examination fee must be paid for each examination taken.

(5) Any examination completed through dishonest or fraudulent means ~~shall be considered invalid~~ is given a score of 0.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.824 to delete the reference to waiver of examination, remove a sample list of appropriate topics for study, and to add provisions regarding how often a person may re-test after failing the examination, because under the former voluntary certification program, certification was not required to perform claims adjuster tasks. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.831 LAPSE IN CERTIFICATION (1) If a certification has lapsed ~~past the renewal date,~~ but application for renewal is received within 12 24 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 24 months from the renewal date, the claims examiner ~~must~~ shall submit an initial application for certification;, pay the ~~fee;~~ required fees, and successfully pass an examination to become a certified claims examiner. The continuing education credit requirement for renewal starts over with the new certification period.

(3) A person may not perform the functions of a certified claims examiner with a lapsed certification.

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.831 to revise the conditions for reviving a lapsed certification and identifying at what point a person must reapply for certification and re-test, to reflect the change from a voluntary certification system to a mandatory certification system. There is reasonable necessity to amend the rule to further specify that a person with a lapsed certification is not authorized to perform tasks required to be performed by a certified claims examiner, because prior to the enactment of House Bill 757, those tasks did not have to be performed by a certified claims examiner. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.834 CONTINUING EDUCATION REQUIREMENTS FOR RENEWAL

(1) and (1)(a) remain the same.

(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~~ certification period;

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.834 to harmonize the use of certain terminology within the rules. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.837 REVIEW AND APPROVAL OF CONTINUING EDUCATION COURSES BY DEPARTMENT (1) and (2) remain the same.

~~(3) "Hour" as used in this subchapter, means 50 minutes of instruction.~~

(4) remains the same but is renumbered (3).

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-107, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.837 to remove a definition that has moved to the definitions rule ARM 24.29.813. In addition, there is reasonable necessity to add 39-71-107, MCA, to the implementing citations to reflect the integration of the need for insurers and TPAs to only use certified claims examiners for those tasks which may only be performed by a certified claims examiner.

24.29.847 FEES FOR CERTIFICATION, EXAMINATION, RENEWAL, AND COURSE APPROVAL SUBMISSION (1) The following fees apply to the certified claims examiner program:

(a) initial application for certification $100

(b) examination 75

(d) renewal application for lapsed certification 100

(e) approval of a continuing education course 75

(2) All fees are payable in advance.

(3) All fees are nonrefundable.

~~(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: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-320, MCA

REASON: There is reasonable necessity to amend ARM 24.29.847 while similar rules are being amended, to improve the readability of the rule. The department notes that the fees are not being changed from the existing amounts, and that the fee justification provisions of 2-4-302, MCA, are not required. The department estimates that approximately 50 individuals who are performing the work of a claims examiner will become certified in the next 12 months.

6. The rules proposed to be repealed are as follows:

24.29.811 PURPOSE OF RULES

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-320, MCA

REASON: There is reasonable necessity to repeal ARM 24.29.811 and 24.29.817 as they are now unnecessary, as the scope of the rules no longer needs any explanation and the applicability provisions are obsolete.

24.29.817 APPLICABILITY OF RULES

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-320, MCA

24.29.827 WAIVER OF EXAMINATION

AUTH: 39-71-203, 39-71-320, MCA

IMP: 39-71-105, 39-71-320, MCA

REASON: There is reasonable necessity to repeal ARM 24.29.827 because House Bill 757 eliminated the provisions allowing waiver of the examination under certain circumstances.

7. 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 Jason Swant, Employment Relations Division, P.O. Box 8011, Helena, MT 59604; fax (406) 444-4140; or e-mail to [email protected], and must be received no later than 5:00 p.m., on October 18, 2019.

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, 1315 E. Lockey Avenue, P.O. Box 1728, Helena, Montana 59624-1728, faxed to the department at (406) 444-1394, or e-mailed to [email protected], or may be made by completing a request form at any rules hearing held by the agency.

9. An electronic copy of this notice of public hearing is available through the Secretary of State's web site at https://sosmt.gov/arm/. 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.

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted on July 3, 2019, by telephone.

11. Pursuant to 2-4-111, MCA, the department has determined that the rule changes proposed in this notice will not have a significant and direct impact upon small businesses.

12. The department's Office of Administrative Hearings has been designated to preside over and conduct this hearing.

/s/ MARK CADWALLADER

Mark Cadwallader

Alternate Rule Reviewer

/s/ GALEN HOLLENBAUGH

Galen Hollenbaugh, Commissioner

DEPARTMENT OF LABOR AND INDUSTRY

Certified to the Secretary of State September 10, 2019.