BEFORE THE DEPARTMENT OF LABOR AND INDUSTRY

STATE OF MONTANA

 

In the matter of the adoption of NEW RULES I through XIII regarding workers' compensation claims examiner certification

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NOTICE OF ADOPTION

 

TO:  All Concerned Persons

 

            1.  On July 30, 2009, the Department of Labor and Industry (department) published MAR Notice No. 24-29-237 regarding the proposed adoption of the above-stated rules at page 1213 of the 2009 Montana Administrative Register, Issue Number 14.

 

            2.  On August 21, 2009, the department held a public hearing in Helena at which time members of the public made oral comments.  Additional written comments were received during the comment period.

 

            3.  The department has thoroughly considered the comments and testimony received from the public.  The following is a summary of the public comments received and the department's response to those comments:

 

Comment 1:  A comment was received by Midland Claims Services Inc. (Midland) suggesting deletion of the word "voluntary" in the first sentence of NEW RULE III.  Midland comments the purpose statement in NEW RULE I makes clear that rules all apply to a "voluntary", or nonmandatory, system of workers' compensation claims examiner certification so that the use of the word "voluntary" again is redundant.  Further, should the system ever change to something other than "voluntary", keeping the definition of the system confined to NEW RULE I will make any future rule changes more simple and effective.

 

Response 1:  The department agrees and has changed NEW RULE III as noted below.

 

Comment 2:  Midland also commented that limiting acceptance of other organizations' approved workers' compensation continuing education courses to 50 percent of the required 24 credits required for certification is contrary to the purpose of the rule.  Midland notes that many claims examiners who choose to become certified must also maintain an adjuster license issued by the Montana Insurance Commissioner's office.  If an adjuster received 24 continuing education credits for workers' compensation classes approved by the Department of Insurance, only 12 credit hours could be applied to the workers' compensation continuing education requirements for examiner certification.  Those individuals that provide both workers' compensation and nonworkers' compensation claims services would be required to obtain 36 continuing education credit hours to stay in good standing with both controlling agencies.  Midland comments that this is likely an unintended consequence and that the result is unfortunately contrary to the spirit of the original proposal.

 

Response 2:  The department agrees and has changed NEW RULE VI to allow acceptance of all continuing education credits that meet the course criteria specified in the workers' compensation claims examiner certification rules.

 

Comment 3:  Midland also commented regarding NEW RULE X5(b) by suggesting that it be reworded.  It asserts the meaning of (5)(b) conflicts with (a), by making all charges refunded within 45 days of cancellation.  It suggest rewording to "(b)  in all instances requiring refunds pursuant to NEW RULE X 5 (a), the charges must be refunded within 45 days of cancellation."

 

Response 3:  The department agrees and has changed NEW RULE X.

 

Comment 4:  A comment was received from the Montana State Fund recommending that the department allow requests for approval of course submissions both prior to and after a course has taken place, similar to what the State Bar of Montana allows for continuing legal education credits.

 

Response 4:  The department agrees and has changed NEW RULE X.

 

            4.  The department has adopted the following new rules as proposed, but with the following changes from the original proposal, stricken material interlined, new material underlined:

 

            NEW RULE I (24.29.811)  PURPOSE OF RULES  (1)  remains as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE II (24.29.813)  DEFINITIONS  (1) through (11) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE III (24.29.817)  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)  and  (3) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE IV (24.29.821)  CERTIFICATION OF CLAIMS EXAMINERS 

            (1) through (3) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE V (24.29.824)  EXAMINATION FOR CLAIMS EXAMINERS 

            (1)  through (5) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE VI (24.29.827)  WAIVER OF EXAMINATION  (1)  remains as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE VII (24.29.834)  CONTINUING EDUCATION REQUIREMENTS FOR RENEWAL  (1)  remains as proposed.

            (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 which meet the course criteria specified in these rules toward 50 percent of the 24 hours of approved courses required for the claims examiner certification renewal.

            (3)  remains as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE VIII (24.29.831)  LAPSE IN CERTIFICATION  (1)  and (2) remain  as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE IX (24.29.837)  REVIEW AND APPROVAL OF CONTINUING EDUCATION COURSES BY DEPARTMENT  (1)  through (4) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE X (24.29.841)  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 or the dates the course was held;

            (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 advance approval of courses must be received by the department no less than 30 days prior to the anticipated starting date of the course.

(4)  Requests for approval of courses already held must be received prior to December 31 of the calendar year in which the activity was presented.

            (4)  remains as proposed but is renumbered (5).

(6)  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 requiring refunds under (6)(a), 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) through (11) remain as proposed but are renumbered (7) through (12). 

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE XI (24.29.844)  QUALIFICATIONS FOR INSTRUCTORS 

(1)  through (4) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

            NEW RULE XII (24.29.847)  FEES FOR CERTIFICATION, EXAMINATION, RENEWAL, AND COURSE SUBMISSION  (1)  through (4) remain as proposed.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

      NEW RULE XIII (24.29.851)  MAINTENANCE OF CERTIFICATION DOCUMENTATION  (1)  The department may maintain the records required by [Chap. 125, section 2, L. of 2009] 39-71-320, MCA, in an electronic format.

 

AUTH:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-203, 39-71-320, MCA

IMP:  39-71-105, MCA; Chap. 125, section 2, L. of 2009 39-71-320, MCA

 

 

 

/s/ PAMELA D. BUCY                      /s/ KEITH KELLY

Pamela D. Bucy                                Keith Kelly, Commissioner

Alternate Rule Reviewer                   DEPARTMENT OF LABOR AND INDUSTRY

 

 

            Certified to the Secretary of State on October 19, 2009.