November 1-2, 2007
Wyoming Oil & Gas Commission Building
Casper, Wyoming
Senator Charles K. Scott, Co-Chairman
Representative Jack Landon, Co-Chairman
Senator Pat Aullman
Senator John Hastert
Senator Bob Fecht
Senator William Landen
Representative Ken Esquibel
Representative Mary Hales
Representative Timothy Hallinan
Representative Elaine Harvey
Representative Jerry Iekel
Representative Tom Lubnau
Representative Lori Millin
Representative Jeb Steward
None
Gerald W. Laska, Staff Attorney
Joy N. Hill, Associate Research Analyst
Please refer to
Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.
The Committee met for two days in Casper, Wyoming. Worker's Safety and Compensation Division staff made a presentation on the Division organization, general status of the program and fund and recent trends. The Division requested and the Committee agreed to consider bills amending elective coverage for corporate officers, the distribution of employer premium credits, the burden of proof in alcohol/drug injury cases and replacement of extended permanent total disability awards with a lifetime award.
The Wyoming Retirement System presented the results of a study on a possible retirement system for emergency medical technicians. The Committee requested draft legislation to create a retirement system and other recruitment/retention incentives.
The Wyoming Healthcare Commission reported on its study and recommendations on health insurer's practice of denying coverage for the insured's participation in clinical trials of new drugs. The Department of Health reported on public health nurses infant home visitation program and a Wyoming State Hospital facilities study.
The Committee agreed to proceed with consideration of the following health related bill drafts:
· Medical safety event reporting-standardized taxonomy;
· Regular rebasing of Medicaid reimbursements to health providers;
· Immunity and temporary licensure for health providers in public health emergencies;
· Physician recruitment incentives;
· Long term care access;
· Select committee on health institutions.
The Committee decided not to proceed with a bill creating a health care trust fund. The Chairmen decided not to proceed with a statewide smoking ban in public places because a majority of the Committee's House members did not vote aye on a motion to proceed with the bill.
Co-Chairman Landon called the meeting to order at 8:30 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Senator Scott reviewed the history of workers' compensation program for the benefit of the new committee members. He explained that the concept comes from Progressive Era and is basically a compromise bargain to replace the traditional tort system with a no-fault limited compensation system. He emphasized that it doesn’t matter if a worker was at fault, so long as the injury is work related, but that workers gave up their right to sue employers in return for limited strict liability. Employers likewise gave up their right to deny compensation for workplace injuries on the basis of contributory negligence or assumption of risk. He stated that the original must be recalled when either employers or employees want to erode the system.
Senator Scott stated that the workers' compensation system is a good system, and that approximately 83% of premium funds go to compensate injuries, which is very efficient compared to other insurance or benefit systems. He noted that the system got in fiscal trouble in the past and that a special session was called in the in mid-80’s to enact remedies. That reform failed and in early 1990’s the fund had no reserves and was using this month’s income to pay next month’s bills. The fund is now vastly improved as a result of this committee’s efforts and reforms enacted in the mid-1990s, it is actuarially sound and has sufficient reserves. He reiterated that the most important thing is to remember the original fundamental bargain.
Gary Child, Department of Employment Director, introduced several assistant administrators: Peggy Elgin, Claims; Bill Cole, Employer Services; Pete Simpson, Case support services; and Policy Analyst Mike Todd.
Mr. Child gave additional background on the program. He noted that the first Wyoming workers' compensation act was passed in 1915, that compensation originally was strictly by scheduled body part but is very different now. Most states have at least some private workers' compensation insurance but Wyoming is one of four remaining monopolistic funds. Coverage was originally for extrahazardous employment only but in 1987, optional coverage for non-extrahazardous employment was authorized.
According to Mr. Child, the fund had to borrow $5 Million in 1986 and $4 Million in 1989. Final repayment on those loans was made in 1996, with $770,000 interest. Reserves are currently $887 Million and, according to the fund actuary, the fund is solvent and has adequate contingency reserve. Employer premiums were reduced by 8% this year and 5% last year.
Mr. Child explained the no-fault and exclusive remedy provisions of the program and read applicable language from Article 10, Section 4 of the constitution. Mr. Child state that 92% to 94% of the programs customers are satisfied, according to surveys, and that most complaints are constituent dissatisfaction with individual results and complexity of system.
Mr. Child stated that the division is emphasizing staff training, customer service and the maintenance of reasonable rates. He added that, according to an Oregon study, Wyoming is 28th among the states in premium rates.
Pete Simpson, using a PowerPoint presentation (Appendix 3, slides 3-14), advised the committee on the activities of the case support services section, whose primary function is the timely processing of the many incoming documents. According to Mr. Simpson, the bill turnaround time is down from 28 to 18 days from 2004 to 2007.
Bill Cole, using a PowerPoint presentation (Appendix 3, slides 15-29) advised the committee on the functions of the employer services section, whose mission is to provide quality customer services to employers, establish actuarially accurate rates, register and rate new employers for premium setting purposes. He briefly explained the number of employers in the system, the number of documents handled, overall premium rate trends from 2002-2008, the delinquent premium trend from 2005-2007 and the rate of participation in the new deductible program.
Peggy Elgin explained the claims processing unit (Appendix 3, slides 30-45). According to Ms. Elgin, there are approximately 14,000 open cases and more than 14,000 new injuries per year. She stated that more than 95 of all temporary total disability claims are paid within 30 days, and that there are currently 187 contested cases before the Workers' Compensation Medical Commission and 659 before the Office of Administrative Hearings.
The Committee generally discussed with the division representatives:
· the division's role in identifying illegal immigrants;
· the role of the division's customer service representative;
· the use of the VeriComp fraud detection software system;
· whether the division directs workers to particular health care providers;
· that non-extrahazardous employers may self-insure but do not have tort immunity;
· whether employees may obtain their own second opinion for disability ratings;
· workers' compensation medical reimbursement levels compared to Medicare and Medicaid.
Senator Landen commented that some employers have complained about the drug free workplace premium discount, and questioned whether that program should be amended. Director Child replied that the Division did a lot of investigative work before adopting its rule and met with employers. He stated that the point of contention is employers' desire to use a "quick test" on site and he believes the rules go as far as they can in allowing a quick test for screening, to be followed up by a laboratory test for confirmation.
Nathan McNally of Hettinger Welding told the committee that the drug and alcohol testing discount is not worth the costs of testing and paperwork. He presented a memo identifying problems with the program (Appendix 4).
Barb Brettin, workers' compensation claimant, told the committee she still has trouble getting the Division to pay for her medical care even after a court order to pay, and that the Division fights her at every opportunity. Senator Scott asked if Ms. Brettin would sign a release so that someone from the Committee could investigate her case; she agreed and left her contact information with staff.
Lt. Mike Moore, Casper Police, concurred in the criticisms of the drug and alcohol testing program. He read and presented a letter from Porter, Muirhead, Cornia & Howard, accountants, also critical of the program (Appendix 5).
Tim Force, owner of Burger King franchises in Casper and Torrington, also advised the Committee that the drug free workplace discount does not work as intended.
Todd Bergstein, workers' compensation claimant, advised the Committee of the difficulties he has had in getting benefits paid. He believe the system is broken and proposed increasing access to attorneys by paying claimants' attorneys at a better rate, allowing alternate forms of therapy, raising the cap on vocational rehabilitation benefits and allowing claimants more choice in retraining for new jobs. Senator Scott asked if Mr. Bergstein would sign a release so that someone from the Committee could investigate his case; he agreed and left his contact information with staff.
Director Child proceeded to present four areas where the department is requesting legislation in the upcoming session.
Terry Camp, Evansville and Converse County emergency medical services, told the Committee that the Division is cutting their bills for intermediate life support because the Division's rule only recognize basic and advanced life support by emergency medical technicians.
The Committee recessed from 12:10 p.m. until 1:40 p.m.
Tom Mann, Wyoming Retirement System, with Tammy Ringel and Michele DeLange of Buck Consultants, presented the results of a study directed by 2007 Senate File 63 to consider a possible retirement system for emergency medical technicians. They showed a PowerPoint presentation of the analysis and recommendations prepared by Buck Consultants (Appendix 6). They presented various options for EMT participation requirements, funding and retirement benefit levels. Mr. Mann also presented a report on other EMT recruitment and retention recommendations, as required by Senate File 63 (Appendix 7).
The Committee was receptive to the recommendations of the study and report. Senator Scott asked that Mr. Mann, Jim Mayberry of the Department's Emergency Medical Services and Senator Aullman condense the recommendations for the Committee for a bill drafting request. Based on Committee discussion, Representative Landon summarized that the recommendations should include: retirement option number three as presented by Buck Consultants with a 2% cost of living adjustment; recommendations number 1, 3, 4 and 10 from the Department's report (Appendix 7, page 3); counties or other local entities to pay the member contributions for retirement; a disability retirement benefit; and a definition of "volunteer" for purposes of the retirement system. Mr. Mayberry later reported to the Committee and presented "Recommendations for EMT Retirement Proposal" (Appendix 8), which the Committee agreed by voice vote to incorporate into a draft bill, with an optional requirement of 20% local funding, for consideration at the next meeting.
The Committee returned to the workers' compensation topic.
Dan Neal, Equality State Policy Center, urged the Committee to keep in mind the public perception of workers' compensation, and that most people perceive the program as designed first to control costs and only secondarily to help injured workers. He noted that every employee claim is investigated for fraud, but an employer is statistically likely to be audited only once in 350 years. He noted that medical costs continue to increase despite fewer injuries.
Director Child presented four concerns to the Committee, with three requests for legislation. He presented a comment paper on the issue of elective employer coverage (Appendix 9) and explained that the Supreme Court recently ruled that a corporate employer could not elect coverage for its officers if the corporation did not also have other employees with mandatory or optional coverage. Mr. Child recommended a bill to overrule that decision.
The Committee discussed whether corporate officers of small corporations should be allowed workers' compensation coverage. Bill Cole, Assistant Administrator for Employer Services, advised the Committee that the cost of claims by corporate officers was $284,000 during the same period that premium received for that coverage was $1.5 Million.
Director Child presented a comment paper on premium credits authorized by W.S. 27-14-201(q) (Appendix 10). He recommended that the statute be revised to remove the current credit distribution formula and to distribute those credits instead in proportion to premium paid by all employers.
Director Child presented a comment paper on the burden of proof on causation in cases involving possible drug or alcohol use (Appendix 11). He recommended that W.S. 27-14-102(a)(xi) be amended so that injury causation by drug or alcohol use is no longer an affirmative defense, with the division or employer carrying the burden of proof. Instead, he recommended that, if there is a positive drug or alcohol test following a work injury, that the claimant be required to rebut by clear and convincing evidence a presumption that the injury was caused by the drug or alcohol use.
Finally, Director Child recommended that permanent total disability awards be changed to a lifetime award, repealing the requirement that injured workers periodically reapply for extended benefits after payout of their permanent total award.
The Committee discussed the Department's recommendations and decided, on voice votes, to request draft bills on corporate officer coverage, premium credit distribution, burden of proof in alcohol/drug cases and replacement of extended permanent total benefits with a lifetime benefit, as described by Director Child.
The Committee recessed at 5:35 p.m..
Co-Chairman Scott called the meeting to order at 8:05 a.m.
Susie Scott-Mullen, Executive Director, and Beth Worthen, Assistant Director, Wyoming Healthcare Commission ("WHCC") reported to the Committee on the WHCC study of health insurance payment exclusion when the insured participates in a clinical trial. They distributed a report summary and recommendations (Appendix 12). They reported that approximately 23 adults and five children per year in Wyoming would participate in clinical trials of new cancer treatments, and that WHCC recommended that legislation be passed requiring insurers to cover phase 2, 3 and 4 clinical trials for cancer, if approved by nationally recognized research organizations.
Rick Schum, Blue Cross/Blue Shield of Wyoming, testified that the additional cost for his company would be approximately $300,000 per year, and that some of costs associated with clinical trials are already being paid because they are not distinguishable from other costs.
Following discussion of the seven numbered WHCC recommendations (Appendix 12, page 2), the Committee voted by voice vote to request a draft bill requiring insurance coverage as recommended for routine patient care during clinical trials, but limited to cancer drug trials.
Senator Scott summarized the history of this program, noting that the Wyoming statute came from recommendations at an National Conference of State Legislatures presentation in 1999. He advised the Committee that research shows that if nurses visited certain at-risk mothers during their pregnancy and before their children are two years old, there was a striking reduction in later violent anti-social behavior in those children at age 15.
Dr. Brent Sherard, Dawn Griffin and Ginny Mahoney of the Department of Health addressed the Committee. They distributed handouts entitled "Nurse-Family Partnership – Costs & Benefits: The Economic Return on Investment" (Appendix 13), "Nurse-Family Partnership – FAQ" (Appendix 14) and "Wyoming Nurse-Family Partnership Report Oct. 2007" (Appendix 15). They described the program and its positive impacts, including reduced smoking during pregnancy, reduced incidence of low birth weight babies, increased immunization rates, increased breastfeeding and increased percentage of mothers completing a GED degree. The Committee stressed to the Department representatives that the program is working well for those mothers whom it is reaching, but it is substantially missing the target population.
Dr. Sherard and Lee Clabots, Deputy Director of Administration, Department of Health, addressed the Committee. Dr. Sherard stated that the Department had contracted out a phase I facilities study, that Wyoming State Hospital is at 100% occupancy, and that there are 10-20 involuntary commitments per month that cannot be accommodated at the Hospital. He further stated that, in the short term, the Department is planning to use some of the facility at the Wyoming State Training School in Lander for involuntary commitments. In the longer term, the Department is requesting funding in its budget for a complete facilities and program review of the Department's institutions and programs house in those facilities.
The Committee generally discussed coordination among the institutions, the unused wing at the Retirement Home in Basin, whether the private sector should be providing more services and whether some people are being kept in jail due to a lack of mental health facilities for those charged with a crime but who have a mental illness.
The Committee discussed the need for an extensive review of the department's services, the populations served and the condition of available facilities. They discussed with the department representatives and Senator John Schiffer, also attending the meeting, how such a study should be structured and by whom it should be conducted.
The Committee agreed by voice vote to request a draft bill creating a select committee to conduct a comprehensive program and facilities review of the Department of Health institutions and clients served at those institutions, and authorized Senator Scott to work with staff in preparing the draft.
The Committee recessed from 12:00 noon until 1:30 p.m.
Chairman Scott reminded the Committee and persons attending that the Committee did not intend to vote on any proposed legislation, but simply to present it and see if the Committee wanted to continue with each bill at its next meeting.
Senator Scott asked the WHCC representatives if the bill as drafted accomplished the WHCC's recommendation that a standard taxonomy be used for safety event reporting. Beth Worthen replied that the recommendation is to avoid putting a specific list of events in the statute and to give the Department of Health the authority to amend the list as necessary.
Linda Chasson, Preventive Health and Safety Administrator, Department of Health, advised the Committee that there are many competing lists of hospital safety events, that the current statute uses the National Quality Foundation list and that the Department is satisfied with that list. She distributed a "Summary of Adverse Health Events Reported from July 2006 to June 2007 (Appendix 17).
The Committee generally discussed ideas for improving the current safety event reporting statute, whether reported data could be kept confidential and whether the statute should have a specific list of reportable events or should authorize the Department to adopt a list. Senator Scott advised the members to bring any proposed amendments to the next meeting for incorporation into this bill.
The Committee recessed from 12:00 noon until 1:30 p.m.
Loretta Wolf, American Cancer Society, advised the Committee regarding a survey commissioned by the society which found two-thirds of the public support a statewide smoking ban in public places.
Dan Lex, Wyoming Optometric Association, stated that the association supports the bill to regularly adjust physician reimbursements, but that it should cover all Medicaid providers and not just physicians.
Toni Decklever, Wyoming Nurses Association, distributed an "Update of Nursing Workforce Projects" (Appendix 18), including current nursing school enrollment, results of a Department of Employment satisfaction survey among nurses, goals and progress of the Board of Nursing and the status of expanding the role of CNA's. She advised the Committee that there are two new community college nursing programs and that there are currently 751 people enrolled in nursing programs statewide. The Nursing Board had proposed rules on Level II certified nursing assistants becoming certified medication aides. She further stated that the Association has misgivings about the proposed interstate nursing compact that would possibly facilitate incompetent nurses moving to another state. She distributed a "Fact Sheet: Nurse Licensure Compact" (Appendix 19). The Association supports a smoking ban, increased reimbursement of hospitals for trauma care and provider rebasing. The Board anticipates requesting legislation in the future regarding school nurses and increasing long term care staffing requirements.
The Committee briefly discussed the draft bill and agreed by voice vote to proceed with the bill at its next meeting, however with the removal of references to cost reports and a timeframe for rebasing all health care provider reimbursements every two years in conjunction with the biennial budget process.
Dr. Sherard explained that the Department of Health is trying to prepare for a public health emergency, and would like to be able to recruit retired or inactive health care providers and to have a mechanism for providers to be temporarily licensed while working during an emergency. He proposed adding a provision to the bill providing for temporary licensure. The Committee decided by voice vote to proceed with consideration of the bill at the next meeting, with the addition of a subsection (b) that would authorize licensing boards to issue temporary licenses in an emergency, or the state health officer if the boards could not act in a timely fashion.
Representatives Landon and Steward advised the Committee that they had discussed this proposal but had not been able to come up with a concrete proposal to be drafted for the meeting. Representative Steward described his concept of having a state-funded vehicle to fund pilot projects in health care delivery. Following discussion, the Committee agreed by voice vote with Chairman Scott's suggestion that the proposal is too ambitious for the Committee to take on during a budget session.
Representative Hallinan addressed the Committee and noted that the draft is a simple resurrect of last year's bill, brought simply as a placeholder. He distributed a handout (Appendix 23) that listed his recommendations for the components of a physician recruitment program.
Representative Lubnau noted that this is an area that is very strictly regulated by the federal government via the Stark anti-kickback laws and Medicare/Medicaid regulations. He distributed a proposed bill that he had requested, containing language that would dovetail with the federal regulations (08LSO-0210.W1, Appendix 24).
Chairman Scott suggested that the bill be redrafted for the next meeting, incorporating both Representative Hallinan's suggestions and Representative Lubnau's bill. The Committee agreed by voice vote.
Chairman Scott described the bill and suggested it be called "Long term care access" instead of "Health care access pilot project." He noted that the language is flexible enough to allow the department to expand the program with federal grants or state appropriation. Chairman Landon suggested inserting language providing that the centers "may be based with senior centers where appropriate." Following a brief discussion, the Committee agreed by voice vote to proceed with the bill at the next meeting, with the recommended changes.
Senator Scott advised the Committee that a draft smoking bill had been drafted per the Committee's request but that he had not put it on the agenda for this meeting pending further discussion about whether the Committee could handle the bill this session. He suggested that the bill would take a least one-half day at the next meeting, if not more, and would take a lot of debate time during the session. He suggested it might be better to carry the bill over to the general session. The Committee discussed the advisability of attempting the bill during the budget session. Senator Scott's motion to schedule the bill for the next meeting initially carried on a voice vote. However, Chairman Landon pointed out that there was not a majority of positive votes from the Committee's house members and that, as provided with the new rule adopted by the Committee, a majority of each house's members are needed for the Committee to sponsor a bill. The chairmen therefore decided that the bill would not be scheduled for the next meeting.
There being no further business, Co-Chairman Scott adjourned the meeting at 4:35 p.m.
Respectfully submitted,
Senator Charles Scott, Co-Chairman
Representative Jack Landon, Co-Chairman
November 1-2, 2007
Wyoming Oil and Gas Commission Building
Casper, Wyoming
All meeting materials and handouts provided to the Committee by the Legislative Service Office (LSO), public officials, lobbyists, and the public are referenced in the Meeting Materials Index and are attached at the end of the minutes. The table below provides a summary of the materials provided to the Committee. These materials are on file at the LSO and are part of the official record of the meeting. Please contact the LSO at 307-777-7881 to review these documents.
Appendix |
Appendix Topic |
Appendix Description |
Appendix Provided By |
1 |
Committee Sign-In Sheet |
Lists meeting attendees |
LSO |
2 |
Committee Meeting Agenda |
Provides a general outline of the topics the Committee planned to address at meeting |
LSO |
3 |
Workers' Safety and Compensation |
PowerPoint presentation: Interim Report to the Labor, Health and Social Services Committee – November, 2007 |
Dept. of Emp. |
4 |
Workers' Safety and Compensation |
Memo. from Hettinger Welding, LLC re. drug & alcohol testing program |
Nathan McNally/Hettinger Welding |
5 |
Workers' Safety and Compensation |
Letter from James A. Porter, CPA, to Joint Labor Committee re. drug & alcohol testing program |
James a Porter, CPA |
6 |
Emergency Medical Technicians Retirement Study |
"Analysis and Recommendations of Emergency Medical Technicians Retirement Plan |
Buck Consultants |
7 |
Emergency Medical Technicians Retirement Study |
Legislative Report: EMS Recruitment and Retention |
Dept. of Health |
8 |
Emergency Medical Technicians Retirement Study |
Recommendations for EMT Retirement Proposal |
Dept. of Health/Jim Mayberry |
9 |
Workers' Safety and Compensation |
Dept. of Employment Comment Paper: Elective Employer Coverage |
Dept. of Emp. |
10 |
Workers' Safety and Compensation |
Dept. of Emp. Comment Paper: Premium Credits |
Dept. of Emp. |
11 |
Workers' Safety and Compensation |
Dept. of Emp. Comment Paper: Injury Causation Burden of Proof in Positive Drug or Alcohol Tests |
Dept. of Emp. |
12 |
Review of Selected Reports: Clinical Trials Study |
Clinical Trials – Report Summary and Recommendations |
Wyo. Healthcare Commission |
13 |
Review of Selected Reports: Public health nurses infant home visitation services |
Nurse-Family Partnership - Costs & Benefits: The Economic Return on Investment |
Dept. of Health |
14 |
Review of Selected Reports: Public health nurses infant home visitation services |
Nurse-Family Partnership - FAQ |
Dept. of Health |
15 |
Review of Selected Reports: Public health nurses infant home visitation services |
Wyoming Nurse-Family Partnership Report Oct. 2007 |
Dept. of Health |
16 |
Presentation of bills: Medical safety event reporting. |
08LSO-0110.W1 Medical safety event reporting |
LSO |
17 |
Presentation of bills: Medical safety event reporting. |
Summary of Adverse Health Events Reported July 2006 – June 2007 |
Dept. of Health/Chasson |
18 |
Public comment |
Update of Nursing Workforce Projects |
Wyoming Nurses Association/Decklever |
19 |
Public comment |
Fact Sheet: Nurse Licensure Compact |
Wyoming Nurses Association/Decklever |
20 |
Presentation of bills: Medicaid reimbursement of physicians |
08LSO-0111.W1 Medicaid reimbursement of physicians |
LSO |
21 |
Presentation of bills: Pandemic healthcare emergencies |
08LSO-0112.W1 Pandemic healthcare emergencies |
LSO |
22 |
Presentation of bills: Physician recruitment |
08LSO-0114.W1 Physician recruitment. |
LSO |
23 |
Presentation of bills: Physician recruitment. |
Recommendations for physician recruitment bill |
Representative Hallinan |
24 |
Presentation of bills: Physician recruitment. |
08LSO-0210. Physician and dentist loan payments. |
Representative Lubnau |