Senate Bill No. 375
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act revising the assessment procedures for the workers' compensation subsequent injury fund; providing for a runoff of claims currently administered by the subsequent injury fund; providing for transfer and distribution of funds held in the subsequent injury fund; amending sections 33-16-1008, 39-71-504, 39-71-903, 39-71-906, 39-71-907, 39-71-908, and 39-71-909, MCA; repealing sections 39-71-902, 39-71-910, and 39-71-913, MCA; and providing effective dates."
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Assessment of insurers -- definition. (1) As used in this section, "paid losses" means the following benefits paid during the preceding calendar year for injuries covered by the Montana Workers' Compensation Act without regard to the application of any deductible regardless of whether the employer or the insurer pays the losses:
(a) total compensation benefits paid; and
(b) total medical benefits paid for medical treatment rendered to an injured worker, including hospital treatment and prescription drugs.
(2) The fund must be maintained by assessing each plan No. 1 employer, each plan No. 2 employer, and plan No. 3, the state fund, a proportion of the amount expended from the fund during each calendar year. The total assessment amount must be allocated among plan No. 1 employers, plan No. 2 insured employers, and plan No. 3, the state fund, based on paid losses from the fund for the calendar year preceding the year in which the assessment is collected.
(3) The portion of the total aggregate assessment that must be collected from all plan No. 1 employers, all plan No. 2 insured employers, and plan No. 3, the state fund, is equal to that portion of the individual plan's total paid losses and a proportionate share of administrative expenses reimbursed or paid from the fund in the calendar year preceding the year in which the assessment is collected.
(4) The method of assessing plan No. 1 employers, plan No. 2 insured employers, and plan No. 3, the state fund, is as follows:
(a) on plan No. 1 employers, based on paid losses;
(b) on plan No. 2 insured employers, a surcharge based on the premium collected by insurers; and
(c) on plan No. 3, the state fund, based on paid losses.
(5) On or before February 1 each year, the department shall notify each plan No. 1 employer and plan No. 3, the state fund, of the amount to be assessed against the employer or the state fund for that calendar year. On or before February 1 each year, the department, in consultation with the advisory organization designated under 33-16-1023, shall notify insurers of the premium surcharge rate to be effective for policies written or renewed on and after January 1 in that calendar year.
(6) The portion of the plan No. 1 assessment assessed against an individual plan No. 1 employer is a proportionate amount of total plan No. 1 paid losses during the preceding calendar year that is equal to the percentage that the total paid losses of the individual plan No. 1 employer bore to the total paid losses of all plan No. l employers during the preceding calendar year.
(7) The portion of the plan No. 2 assessment subject to premium surcharge for an individual plan No. 2 employer is a proportionate amount of total plan No. 2 paid losses during the preceding calendar year that is equal to the percentage that the total paid losses of the individual plan No. 2 employer bore to that the total paid losses of all plan No. 2 insurers during the preceding calendar year.
(8) Amounts assessed against plan No. 1 employers, the surcharge rate applicable to policies of plan No. 2 insured employers, and the amount assessed against the state fund must be sufficient to generate revenue needed to satisfy obligation of the fund. If the department subsequently determines that amounts assessed are insufficient to meet the fund's obligations during a calendar year, it may assess plan No. 1 employers, plan No. 2 insurers, and plan No. 3, the state fund, an additional amount to cover any anticipated deficiency based upon the allocation for that calendar year determined under subsection (3). Plan No. 1 employers, plan No. 2 insurers, on behalf of their policyholders, and plan No. 3, the state fund, shall remit the emergency assessment within 30 calendar days of notice of the emergency assessment.
(9) Except for payment of the emergency assessment, payment of assessments due must be made to the department semiannually on March 1 and September 1 of the year following the calendar year in which the assessment is based.
(10) Each plan No. 2 insurer providing workers' compensation insurance shall collect from each of its policyholders an amount equal to the insured employer's fund assessment through a surcharge based on premium. The assessments must include any amounts paid by plan No. 2 insurers on behalf of their policyholders to cover an emergency assessment by the department during the previous calendar year. When collected, assessments may not constitute an element of loss for the purpose of establishing rates for workers' compensation insurance but, for the purpose of collection, must be treated as separate costs imposed upon insured employers. The total of this assessment must be stated as a separate cost on an insured employer's policy or on a separate document submitted by the insured employer and must be identified as "workers' compensation policyholder surcharge". Each assessment must be shown as a percentage of the total workers' compensation policyholder premium. The premium surcharge must be collected at the same time and in the same manner that the premium for the coverage is collected. The premium surcharge must be excluded from the definition of premiums for all purposes, including computation of insurance producers' commissions or premium taxes, except that an insurer may cancel a workers' compensation policy for nonpayment of the premium surcharge. Cancellation must be in accordance with the procedures applicable to the nonpayment of premium.
(11) All assessments paid to the department must be deposited in the fund. Any balance remaining at the end of any fiscal year does not revert to the general fund. The costs of administration of the fund must be paid out of money in the fund.
Section 2. Section 33-16-1008, MCA, is amended to read:
"33-16-1008. Definitions. As used in this part, the following definitions apply:
(1) "Accepted actuarial standards" means the standards adopted by the casualty actuarial society in its Statement of Principles Regarding Property and Casualty Insurance Ratemaking and the Standards of Practice adopted by the actuarial standards board.
(2) "Advisory organization" means a person or organization that either has two or more member insurers or is controlled either directly or indirectly by two or more insurers and that assists insurers in ratemaking-related activities. The term does not include a joint underwriting association, any actuarial or legal consultant, or any employee of an insurer or insurers under common control or management or their employees or manager. As used in this subsection, two or more insurers who have a common ownership or operate in this state under common management or control constitute a single insurer.
(3) "Classification system" means the plan, system, or arrangement for recognizing differences in exposure to hazards among industries, occupations, or operations of insurance policyholders.
(4) "Contingencies" means provisions in rates to recognize the uncertainty of the estimates of losses, loss adjustment expenses, other operating expenses, and investment income and profit that comprise those rates. The provisions may be explicit, including but not limited to a specific charge to reflect systematic variations of estimated costs from expected costs, or implicit, including but not limited to a consideration in selecting a single estimate from a reasonable range of estimates, or both.
(5) "Developed losses" means adjusted losses, including loss adjustment expenses, using accepted actuarial standards to eliminate the effect of differences between current payment or reserve estimates and those needed to provide actual ultimate loss payments, including loss adjustment expense payments.
(6) "Expenses" means the portion of a rate that is attributable to acquisition, filed supervision and collection expenses, general expenses and taxes, licenses, or fees.
(7) "Experience rating" means a rating procedure using past insurance experience of the individual policyholder to forecast future losses by measuring the policyholder's loss experience against the loss experience of policyholders in the same classification to produce a prospective premium credit, debit, or unity modification.
(8) "Insurer" means a person licensed to write workers' compensation insurance as a plan No. 2 insurer under the laws of the state.
(9) "Loss trending" means a procedure for projecting developed losses to the average date of loss for the period during which the policies are to be effective, including loss ratio trending.
(10) "Market" means the interaction in this state between buyers and plan No. 2 sellers of workers' compensation and employer's liability insurance pursuant to the provisions of this part.
(11) (a) "Prospective loss costs" means historical aggregate losses and loss adjustment expenses, including all assessments that are loss-based and excluding any separately stated policyholder surcharges, projected through development to their ultimate value and through trending to a future point in time and ascertained by accepted actuarial standards.
(b) The term does not include provisions for profit or expenses other than loss adjustment expenses and assessments that are loss-based.
(12) "Pure premium rate" means the portion of the rate that represents the loss cost per unit of exposure, including loss adjustment expense.
(13) (a) "Rate" or "rates" means rate of premium, policy and membership fee, or any other charge made by an insurer for or in connection with a contract or policy of workers' compensation and employer's liability insurance, prior to application of individual risk variations based on loss or expense considerations.
(b) The term does not include minimum premiums.
(14) "Reserve estimates" means provisions for insurer obligations for future payments of loss or loss adjustment expenses.
(15) "Statistical plan" means the plan, system, or arrangement that is used in collecting data.
(16) "Supplementary rate information" means a manual or plan of rates, statistical plan, classification system, minimum premium, policy fee, rating rule, rate-related underwriting rule, and any other information needed to determine the applicable premium for an individual insured that is consistent with the purposes of this part and with rules prescribed by rule of the commissioner.
(17) "Supporting information" means the experience and judgment of the filer and the experience or data of other insurers or advisory organizations relied on by the filer, the interpretation of any statistical data relied on by the filer, descriptions of methods used in making the rates, and any other similar information required to be filed by the commissioner."
Section 3. Section 39-71-504, MCA, is amended to read:
"39-71-504. Funding of fund -- option for agreement between department and injured employee. The fund is funded in the following manner:
(1) The department may require that the uninsured employer pay to the fund a penalty of either up to double the premium amount the employer would have paid on the payroll of the employer's workers in this state if the employer had been enrolled with compensation plan No. 3 or $200, whichever is greater. In determining the premium amount for the calculation of the penalty under this subsection, the department shall make an assessment on how much premium would have been paid on the employer's past 3-year payroll for periods within the 3 years when the employer was uninsured.
(2) The fund shall receive from an uninsured employer an amount equal to all benefits paid or to be paid from the fund to an injured employee of the uninsured employer.
(3) The department may determine that the $1,000 assessments that are charged against an insurer in each case of an
industrial death under 39-71-902(1) must be paid to the uninsured employers' fund rather than the subsequent injury fund. (4)(3) The department may enter into an agreement with the injured employee or the employee's beneficiaries to assign to
the employee or the beneficiaries all or part of the funds received by the department from the uninsured employer pursuant
to subsection (2)."
Section 4. Section 39-71-903, MCA, is amended to read:
"39-71-903. Procedure and practice. When a vocationally handicapped person receives
a personal an injury, as defined
in 39-71-119, the procedure and practice provided in this chapter applies to all proceedings under this part, except where
specifically otherwise provided herein."
Section 5. Section 39-71-906, MCA, is amended to read:
"39-71-906. Employer hiring or retaining certified vocationally handicapped person to file information with
department -- effect of failure to file -- department to notify insurer. (1)
Upon commencement of employment or
retention in employment of a certified vocationally handicapped person, the The employer shall submit to the department,
on forms furnished by the department, all pertinent information requested by the department:
(a) within 60 days after the filing of an application by an employee for certification as vocationally handicapped or 60 days after the first day of the vocationally handicapped person's employment or retention in employment; and
(b) before an injury for which benefits are payable under this part.
(2) The department shall acknowledge receipt of the information. Failure to file the required information with the
60 days after the first day of the vocationally handicapped person's employment or retention in
employment the time required under subsection (1) precludes the employer from the protection and benefits of this part
unless the information is filed before an injury for which benefits are payable under this part."
Section 6. Section 39-71-907, MCA, is amended to read:
"39-71-907. Certified vocationally handicapped person to be compensated for injury as provided by chapter --
insurer liability for compensation limited -- appropriation. (1) A person certified as vocationally handicapped who
a personal an injury arising out of and in the course of employment and resulting, as defined in 39-71-119, that
results in death or disability must be paid compensation in the manner and to the extent provided in this chapter or, in case
of death resulting from such the injury, the compensation must be paid to the person's beneficiaries or dependents. The
liability of the insurer for payment of medical and burial benefits as provided in this chapter is limited to those benefits
arising from services rendered during the period of 104 weeks after the date of injury. The liability of the insurer for
payment of benefits as provided in this chapter is limited to 104 weeks of compensation benefits actually paid. Thereafter,
all compensation and the cost of all medical care and burial is the liability of the fund.
(2) The amounts necessary for the payment of benefits from this fund are statutorily appropriated, as provided in 17-7-502, from this fund."
Section 7. Section 39-71-908, MCA, is amended to read:
"39-71-908. Notification of fund of its potential liability under part -- review by fund. Not less than
90 or more than
150 60 days before the expiration of 104 weeks after the date of injury, the insurer shall notify the fund whether it is likely
that compensation may be payable beyond a period of 104 weeks after the date of the injury. The fund thereafter After
notification, the fund may review, at reasonable times, such the information as the insurer has regarding the accident and
the nature and extent of the injury and disability."
Section 8. Section 39-71-909, MCA, is amended to read:
Effect of fund's failure to give notification of its intent to dispute liability -- subsequent notification by
fund authorized Insurer to pay benefits -- reimbursement by fund. If the fund does not notify the insurer of its intent to
dispute the payment of compensation, medical, and burial benefits, the The insurer shall continue to make payments on
behalf of the fund and shall must be reimbursed by the fund for all benefits paid in excess of the insurer's liability.
However, at any time subsequent to 104 weeks after the date of injury, the fund may notify the insurer of a dispute as to
payment of benefits. The liability of the fund to reimburse the insurer shall be suspended 30 days thereafter until the
controversy is determined."
NEW SECTION. Section 9. Transfer and credit of excess funds held in subsequent injury fund. (1) On or before December 31, 1997, the department of labor and industry shall retain an independent actuary to calculate fully developed case reserves for those claims that are the liability of the fund.
(2) Claims that are identified and that are being reimbursed from the fund on or before July 1, 1997, must be paid from the reserves.
(3) The independent actuary shall calculate the sum necessary to reimburse 1 year's anticipated payments of benefits on claims reported to and being reimbursed by the fund, which must be retained in the fund.
(4) The funds in excess of those necessary to pay the claims identified in subsections (2) and (3) in the fund, if any, must be transferred to the administration fund in 39-71-201 and credited to insurers as follows:
(a) A proportionate share of the remaining funds to be credited must be allocated among plan No. 1, plan No. 2, and plan No. 3 in the proportion that the individual plan's aggregate contributions for the preceding 5 years bear to the total assessment in the preceding 5 years.
(b) The shares allocated to plan No. 1 and plan No. 2 must be credited to the individual plan No. 1 employers and plan No. 2 insurers authorized to transact insurance in Montana at the time of allocation. The credit must be allocated among insurers proportionately based on the prorated share that the amount the insurer paid on the plan No. 1 or plan No. 2 assessment for the fiscal year ending June 30, 1997, bore to the total assessment paid by plan No. 1 or plan No. 2 in the fiscal year ending June 30, 1997. The amount calculated must be credited to the plan No. 1 or plan No. 2 assessment for the administration fund in 39-71-201.
(c) The shares allocated to plan No. 3, the state fund, must be credited to the state fund's assessment for the administration fund in 39-71-201.
NEW SECTION. Section 10. Repealer. Sections 39-71-902, 39-71-910, and 39-71-913, MCA, are repealed.
NEW SECTION. Section 11. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 39, chapter 71, part 9, and the provisions of Title 39, chapter 71, part 9, apply to [section 1].
NEW SECTION. Section 12. Effective dates. (1) [Sections 1 through 8 and 10] are effective January 1, 1998.
(2) [Sections 9 and 11 and this section] are effective on passage and approval.