MINUTES OF THE
ASSEMBLY COMMITTEE ON LABOR AND MANAGEMENT
Sixty-seventh Session
May 21, 1993
The Assembly Committee on Labor and Management was called to order by Chairman Christina R. Giunchigliani, at 2:15 p.m., on May 21, 1993, in Room 119 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Ms. Christina R. Giunchigliani, Chairman
Mr. Bernie Anderson, Vice Chairman
Mr. Douglas A. Bache
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. Peter G. Ernaut
Mr. Lynn Hettrick
Ms. Erin Kenny
Mr. Michael A. Schneider
COMMITTEE MEMBERS ABSENT:
Mr. John B. Regan
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Mr. Donald O. Williams, Principal Research Analyst
Mr. Frank Krajewski, Senior Research Analyst
Ms. Kimberly Morgan, Bill Draft Advisor
Ms. Leigh O'Neill, Deputy Legislative Counsel
Ms. Vivian McClay, Senior Research Technician
OTHERS PRESENT:
Mr. George McNally, Nevada Trial Lawyers Association
Ms. Marsha Berkbigler, Nevada Association of Rehabilitation
Professionals/Private Sector (NARPPS)
Ms. Sheri Newberry, District Manager, Department of Industrial
Insurance Relations (DIIR)
Ms. Linda Doty, Rehabilitation Specialist, the State
Industrial Insurance System (SIIS)
Ms. Gayle Sherman, Management Analyst, the State Industrial
Insurance System (SIIS)
Mr. Scott Young, General Counsel, the State Industrial
Insurance System (SIIS)
Ms. Nancy Leeder, Attorney, Nevada Association for Injured
Workers (NAIW)
Mr. Ray Badger, Nevada Trial Lawyers Association (NTLA)
Chairman Giunchigliani opened the hearing for testimony on SB-316.
SENATE BILL 316 -Makes various changes to provisions governing industrial insurance.
Mr. Bache stated the vocational rehabilitation sections, Sections 115 and 116, (Exhibit C) were worked on to better define and streamline the costs.
Mr. George McNally, Nevada Trial Lawyers Association, testified. He called attention to suggested amendments made to Sections 115 and 116 (Exhibit C). Mr. McNally stated to determine if an injured worker was eligible to be assessed for a vocational rehabilitation program, he had to be considered unable to return back to his pre-injury job for 28 consecutive days. What was suggested in Exhibit C was early intervention vocational rehabilitation. The injured worker would be eligible for vocational rehabilitation when the treating physician or chiropractor approved him to go back to work but imposed certain restrictions which prevented him from returning to his pre-injury position.
Ms. Marsha Berkbigler, Nevada Association of Rehabilitation Professionals/Private Sector (NARPPS), testified. She noted rehabilitation counselors in Nevada were not licensed, but were certified.
Mr. McNally explained after it was decided the injured worker could not return to his pre-injury position, then the vocational rehabilitation counselor developed a plan for the worker.
Mr. McNally stated Section 116 explained the criteria for vocational rehabilitation counselors (Exhibit C).
Ms. Berkbigler noted proposed amendments to Section 116 listed in Exhibit C were actually a full replacement of Section 116. Section 116 proposed all vocational rehabilitation counselors, both public and private sector be qualified according to the same standards. Ms. Berkbigler conducted an item by item definition of Section 116, subsections 1-3.
Mr. McNally defined Section 116, subsection 4-7.
Chairman Giunchigliani called attention to the definition of "minimum self support" (Exhibit C) and asked if the percentage used was common amongst the industry or was it modified after the percentage. Mr. Bache responded it was a modification of the 80 percent.
Chairman Giunchigliani queried if there was any specific duration or time a counselor had to find employment for an individual. Mr. Bache noted Section 116, subsection 6 explained an injured work must be employed for at least 60 days following the completion of a training program before his case could be closed.
Chairman Giunchigliani stated in Section 115, subsection 1(c) the vocational rehabilitation counselor was required to work with the employer and the physician or chiropractor in developing a job description, and prior to the physician or chiropractor releasing the injured worker to work they must decide whether or not those limitations and the release met with the opportunities the worker had.
Mr. McNally explained the assigned counselor and the treating physician were to notify the insurer and the potential employer as to how long the injured worker might be in a light duty capacity moving toward a permanent light duty or permanent return with no restrictions.
Mr. Carpenter noted he concurred with the physicians and chiropractors working with the vocational rehabilitation counselors, and questioned what the savings was to the system. Mr. Bache responded when preparing this amendment to Section 115, subsection 2 the percentage of impairment was eliminated. He noted with both the physician and counselor working together better decisions should be made.
Mr. Carpenter stated vocational rehabilitation had the largest cost drivers, and called attention to Exhibit D which showed increases from 1984 to present.
Chairman Giunchigliani pointed out in the early years maintenance was not included in vocational rehabilitation (Exhibit D), and presently vocational rehabilitation and maintenance were combined. Mr. Bache suggested inserting some time lines to the vocational rehabilitation program to control costs, instead of cutting the impairment rates.
Mr. McNally noted the lump sum buyout became effective in 1991 and was part of the cost driver.
Mr. Carpenter questioned if an injured worker was eligible for vocational rehabilitation and the system decided it would cost too much to rehabilitate him, could they give him a lump sum of what the estimated cost of rehabilitation was. Mr. McNally responded vocational rehabilitation lump sum buyout was specifically for the purpose of closing the claim. More often than not, the injured worker had already received his permanent partial disability (PPD) rating and award.
Mr. Carpenter asked if there was correlation between a PPD award and a vocational rehabilitation buyout lump sum. Mr. McNally responded there was no correlation. Mr. McNally explained the injured worker would receive the PPD lump sum as a result of the injury for his impairment and disability, and the vocational rehabilitation lump sum was the injured employee's choice to take a sum of money instead of going being rehabilitated. If the injured worker would accept a vocational rehabilitation lump sum buyout, he then had to find his own future employment.
Mr. Ernaut concurred with amendments to Sections 115 and 116 (Exhibit C). He questioned the rationale of changing the minimum self-support threshold from 80 to 85 percent. Mr. Bache responded it was done arbitrarily.
Mr. Ernaut further questioned if the "28 consecutive days" mentioned in Section 115, subsection 1 (Exhibit C), were working or calendar days. Mr. Bache responded it was calendar days.
Mr. Ernaut questioned the contrast between the vocational rehabilitation counselor having the responsibility to admit the injured worker to the system, mentioned in Section 115, subsection 1(a) (Exhibit C) and both the physician and the vocational rehabilitation counselor having the joint responsibility to return the injured employee to work, noted in Section 115, subsection 2 (Exhibit C).
Ms. Berkbigler concurred with Mr. Ernaut. Chairman Giunchigliani noted LCB should amend the language in these sections.
After committee discussion, Ms. Berkbigler outlined Section 116, subsection 1 and 2 (Exhibit C). She noted both subsections 1 and 2 related to subsection 3. There must be language which allowed for a non-certified person who had vocational rehabilitation training to review cases. She noted many times these people were finishing their masters degree while working.
Mr. Ernaut queried how many injured workers actually missed 28 consecutive days of work last year. Mr. McNally noted out of all the claims filed, 80 percent had no lost time. The remaining 20 percent had lost time, and out of the 20 percent, seven out of ten were 30 days or less.
Chairman Giunchigliani questioned what was the percentage of injured workers who were actually out of work more than 28 days or more.
Ms. Sheri Newberry, District Manager, Department of Industrial Insurance Relations (DIIR), testified. She responded an estimated five percent of the total amount of injured workers' were actually out more than 28 days.
Mr. Anderson called attention to Exhibit E which noted the system would save $67,800,000 in fiscal '94 and $84,750,000 in fiscal '95 by restricting eligibility in the gross wages and vocational rehabilitation.
Mr. Hettrick questioned if the five percent was the people who went past the 28 days. Ms. Newberry responded the total number would probably be around 4,000 out of 63,000.
Mr. Hettrick noted disagreement with the employer needing the assistance of the vocational rehabilitation counselor to complete a detailed description of the employee's pre-injury duties noted in Section 115, subsection 1(c) (Exhibit C). Mr. McNally responded an employer would sometimes send a detailed job description to the treating physician, and when the employee would see the description he would say it was not even close to what he was required to do. Mr. McNally noted to get the employer and the vocational rehabilitation counselor together, maybe even with the employee, would prolong the process, but was a valid process.
Chairman Giunchigliani commented the DIR plan explained lifting, bending, stretching, climbing, standing and sitting requirements. She noted when a system was so detailed it was difficult for the small or medium sized business who did not have the personnel to deal with risk and personnel management. If the system had someone to assist the small and medium employer, it might drive the process faster. A larger company had the personnel who dealt with risk and personnel management.
Mr. Collins noted his agreement with the vocational rehabilitation counselor being involved in completing the job description of an employee. Chairman Giunchigliani stated possibly the vocational rehabilitation counselor could work with the employer from the beginning to discuss a light duty position. She noted the addition of Mr. Hettrick's idea of having the vocational rehabilitation counselor work with the injured worker as well and then offer assistance to the employer.
Mr. Hettrick called attention to Section 115, subsection 2 (Exhibit C) and queried the language "if the injured worker can return to the pre-injury job based on his current medical status and detailed job description." He stated, "It would appear to me that would be the minimum self-support because otherwise what we have done is say there was no 85 percent level and it was now 100 percent." Mr. Hettrick also noted the minimum self-support was not used anywhere in Exhibit C except for the definition. Mr. McNally responded this was an accurate observation.
Mr. Hettrick questioned the language in Section 116, subsection 7 (Exhibit C) and noted it sounded like the system would pay a partial for up to two years. Mr. McNally noted if the injured worker went to work and earned less than on temporary total disability (TTD), then he received temporary partial disability (TPD) which was the difference of what he was earning and the TTD payment. He could receive the TPD for up to 24 months.
Mr. Carpenter questioned if the money received from TPD was taxable.
Ms. Newberry noted temporary partial disability was not taxable. Ms. Giunchigliani noted the wage earnings from the employer were taxable.
Chairman Giunchigliani questioned if there was any discussion on limiting the lump sum payments. Mr. Bache responded Section 199 (Exhibit C) addressed the lump sum issue.
Chairman Giunchigliani stated a better criteria should be explored as to who should be eligible for vocational rehabilitation lump sum buyout. This was one of the largest cost drivers in the system. She noted it was an option for a person who had to move out of state to find work, or for a person who had been in the same position for 30 years and was too old to rehabilitate. Chairman Giunchigliani noted language should be established to restrict the injured worker from entering another agency after receiving benefits from the system unless they qualified for federal eligibility. She further explained currently when an injured employee accepted a lump sum buyout, he would revoke any future chance of being rehabilitated.
Mr. Hettrick noted he had a person in his employ who had been through rehabilitation three times.
Chairman Giunchigliani questioned if on the job training (OJT) was a type of a plan or was it considered vocational rehabilitation. Ms. Berkbigler noted OJT was a type of rehabilitation, or could be considered the end result of a rehabilitation program.
Ms. Berkbigler noted part of the problem was each person was different as far as his education and qualifications. Therefore it made it difficult to put exact language into SB-316. She noted a limit of time the injured worker spent in vocational rehabilitation could be set, and limit the amount of programs he could go through.
Ms. Linda Doty, Rehabilitation Specialist, the State Industrial Insurance System (SIIS), testified. She noted there were many reasons for conducting more than one rehabilitation program with a client. A few scenarios were a business conducting an OJT could fold up during the training process and the system would have to start over again, or the injured worker might endure a worsened condition and after seeing his doctor might have reduced limitations.
Ms. Gayle Sherman, Management Analyst, the State Industrial Insurance System (SIIS), testified. Ms. Sherman noted her agreement with early intervention. She explained her concern with Section 115 (Exhibit C) was an injured employee was not always ready for rehabilitation within 28 days after his injury. The system could be making rehabilitation determinations at a time when it could not be determined if the limitations were permanent or temporary. If an employee could return to his pre-injury employment, the system did not want to provide rehabilitation services. What the system did want was to provide early intervention. Ms. Sherman suggested inserting a clause in Section 115 (Exhibit C) which allowed the system to let the injured worker recuperate to a point where the system could make a reasonable decision.
Chairman Giunchigliani questioned if the injured workers employer was contacted to inquire if his position could be kept open for him. Ms. Sherman responded currently on the early intervention program the system contacted everyone immediately and then 10 days later would reevaluate. Sometimes in the early intervention process the counselor could identify a light duty position the employer did not even realize existed.
Mr. Hettrick concurred with Ms. Sherman in regard to the 28 days. He noted the previous panel indicated this only required the evaluation to take place, the injured worker did not have to go into rehabilitation after 28 days if he was not ready.
Chairman Giunchigliani noted currently an injured worker who would be going back to work pending the healing process did not go through rehabilitation. Ms. Doty noted the vocational rehabilitation counselor, the nurse, and the claims examiner would determine what steps had to be taken.
Chairman Giunchigliani questioned if there were any other scenarios where the injured worker needed more than one training program. Ms. Doty responded there had been occasions when the injured worker could not do the training program he was placed in. Ms. Sherman explained sometimes employability problems which always existed might pop up, like substance abuse, alcohol problems, family problems, and inability to get along with coworkers. Sometimes problems as these could abort an OJT before its conclusion. Chairman Giunchigliani asked if the system continued helping them to find another OJT. Ms. Sherman noted it depended on how blatant the problem was. If the problem was so blatantly unrelated to the industrial injury, then the system might terminate benefits. Chairman Giunchigliani questioned what had helped drive the costs which had almost doubled in maintenance. Ms. Doty noted it was a combination of staffing, very heavy caseloads, and the way rehabilitation regulations had been interpreted through the hearings and appeals system over the last several years. She noted the new regulations which had been implemented recently were a good step in correcting many of these problems.
Mr. Scott Young, General Counsel, the State Industrial Insurance System (SIIS), testified. Mr. Young stated one of the things which triggered rehabilitation was a light duty release. The physician stated the individual was incapable of returning to his pre-injury employment and what the system had noticed was a large increase in the number of light duty releases. It was not always a case where there was more money being spent per claim, but sometimes there were more people eligible for rehabilitation.
Chairman Giunchigliani questioned if the medical model was eliminated would vocational rehabilitation figures decrease. Ms. Sherman noted physicians were reluctant to give up their role of advocacy for their patients. If the patient and the employer had a disagreement about a light duty position, then the doctor was put in the position to say to his patient, "You need to go back to work, I don't think it will really hurt you." She explained in her opinion doctors were reluctant to push their patients back to work, and would rather take the path of making their patient eligible for vocational rehabilitation.
Mr. Collins noted in regard to light duty positions, employers requested the physicians put in writing what the injured employer could and could not do. Ms. Sherman noted two different scenarios, one was if the injured worker had improved and was going back to a temporary situation and eventually would return to his pre-injury employment. There was not too much to worry about with this scenario, except to make sure he did not hinder his recuperation. Another scenario was when the injured worker had permanent limits, and the system knew he could not go back to his pre-injury employment. The system then had to solicit a light duty position. Ms. Sherman noted if there was a disagreement on either situation about what the job entailed, the system would perform a job site analysis.
Mr. Carpenter suggested creating language when the injured worker was not eligible for vocational rehabilitation because the doctor said he would be able to go back to his pre-injury position after a healing period. He also questioned if the same criteria was used in calculating rehabilitation expenses in 1984 through 1993 (Exhibit D).
Mr. Young responded the system had used the same calculations from 1984 through present. He noted the Chair had mentioned in some of the earlier years not all factors were included, and noted he would check on the calculations. One of the big drivers in the rehabilitation total was the number of people. For fiscal year 1992 the system spent $75.5 million on rehabilitation. Of the $75.5 million, just under $50 million was for rehabilitation maintenance. The actual expenditures for the programs and transportation made up the rest. Mr. Young explained a large part of the rehabilitation could be dictated by the length of time people had received it.
Mr. Young outlined the figures he had for temporary partial disability (TPD) for fiscal year 1992 amounted to $2 million. He explained two scenarios where TPD was used, one was when someone was recuperating and could work two to four hours a day, but could not work a full day. The injured worker was paid by his employer and the system would pick up the difference through TPD. The other scenario would be the injured worker could work a full 40 hours a week, but might not be able to earn his compensation rate, so the law allowed the insurer to supplement the existing wage he was earning up to the point of his compensation level.
Chairman Giunchigliani noted the committee should explore establishing a cap. She noted some feedback was needed so the committee could begin to examine some potential language to react to next week. There needed to be some exceptions from time to time. The Chair stressed the revolving of additional rehabilitation had to be stopped.
Mr. Hettrick questioned if it would be appropriate to use a six month cap on light duty with the ability to extend. He noted he would like to see the criteria to extend restricted.
Mr. Young noted an instance when a physician had said "I don't find any ratable disability, but I know because of the nature of this injury, if they go back to that job they will reinjure themselves. Therefore, I believe they ought to be on light duty."
Mr. Hettrick queried if an injured worker would receive a PPD award if he received an initial light duty release, but in six weeks or so went back to his pre-injury position. Mr. Young noted the physician continued to treat the insured worker until he got to the point of being stable and rateable. Theoretically, he would not get any better with any known treatment. The doctor could make a mistake, but in most instances the system had to rely on what the doctor predicted.
Mr. Hettrick questioned what percentage of cases which had been terminated by vocational rehabilitation counselors got kicked back by the hearing officers. Mr. Young responded he would have someone put the figures together for the committee.
Mr. Carpenter asked if there were many injured workers who took the lump sum buyout instead of vocational rehabilitation. Mr. Young responded in 1992 there were 1,080. Mr. Young noted there were many reasons why this occurred. Sometimes the individual was not going to cooperate and it was a pragmatic way of closing the case. Also if the injured party was a 64 year old individual who could not go back to his old job, he was still eligible for vocational rehabilitation, but probably no one would hire him because of his age, so it was more realistic to give him a lump sum buyout.
Mr. Carpenter stated, "Do you think we can arrive at the savings that we need to through an amendment that we have here to SB-316 or do we have to have some of the features that are now in SB-316 to arrive at those kind of savings."
Mr. Young noted he was not sure all the issues in SB-316 were necessary. If the system expected to save $79 million, probably the issues in SB-316 were needed, although he did not believe the proposed changes to SB-316 would save the system $79 million. In SB-316 the 80 percent requirement became a threshold for getting into the rehabilitation program. The other threshold was the 25 percent of disability. The individual must receive a wage equal to the minimum self-support. The minimum self-support was 85 percent of their pre-injury wage. He explained this meant once an injured employee was in an on-the-job training program the case could not be closed until he earned 85 percent. For a very high wage earner the 66 2/3 percent was not 66 2/3 of his wage before the accident, but under this provision the system would be paying them much more than the compensation rate under existing law. This would actually cost the system more money.
Mr. Anderson questioned if there was any cap for the high wage earner. Mr. Young explained under the present law the maximum monthly amount was $1,880. If an individual earned $100,000 per year on his job, he would still only get $1,880 per month. Mr. Young further explained under the proposed amendments (Exhibit C) with the 85 percent, the system would have to find the person a job which paid $85,000 rather than $22,560.
Mr. Young noted with the proposed amendment (Exhibit C) the system would not get the control over the vocational rehabilitation expenditures without some kind of limits which the Chair had mentioned. Mr. Young noted his savings forecasts were approximately $10 million. He also mentioned with a more fully staffed group the early intervention program should help save the system money. Mr. Young confidently stated there would be monetary improvements, but could not provide an accurate amount.
Chairman Giunchigliani called attention to Section 11, subsections 1-3 (Exhibit F). She stated some of the language in these sections should be incorporated into SB-316.
Ms. Sherman called attention to Section 116, subsection 6 (Exhibit C). She noted Section 6 provided a case could not be closed for 60 days following completion of an OJT. She questioned what would happen to an individual who had not cooperated. Did the system have to provide him with another program.
The Chair noted currently 211 cases were closed in 1992 for lack of cooperation. The system should also track what was working and what was not. If an employee was not obeying the employer's rules, he should be terminated.
Mr. Carpenter questioned the criteria if an injured worker could not return to work for 28 consecutive days. Mr. Young noted the 28 days was only a trigger for an assessment. If someone had a broken leg the system knew he would be out of work for more than 28 days. The potential for having an early review of the claim was appropriate.
Mr. Carpenter asked if any saving would occur from this. Mr. Young noted the earlier the claim was reviewed, the sooner an injured worker could be returned to light duty. Mr. Carpenter asked if less than five percent of the injured workers were out of work for more than 28 days, and was this a limiting factor as to whether the injured worker was eligible for vocational rehabilitation or not. Mr. Young responded if the injured worker was not out of work for more than 28 days chances were he was not going to need rehabilitation. Mr. Young also noted the five percent was actually approximately 5-6,000 people.
Mr. Bache questioned how many certified counselors presently were employed by the system. Ms. Sherman responded three rehabilitation counselors and five supervisors were certified out of a total of 54 positions statewide. She further noted 27 counselors had masters degrees.
Chairman Giunchigliani questioned if July 1, 1994 gave these employees enough time to become certified. Ms. Sherman noted the certifying organization in Illinois told her testing was done twice a year in Nevada. She further noted July, 1995 would be more realistic to get these people certified.
The Chair noted certification gave the counselor a better handle on case management, and the plans for the injured worker would be properly written the first time. The second issue was the system had to pay for the counselors to become certified, but in the long run this would save dollars.
Mr. Young also felt July, 1995 would allow more time to get the counselors certified. Mr. Young noted as the system lost and gained employees, someone could be hired who was not certified, and if testing was only done twice a year, a vacancy could exist for six to eight months
Chairman Giunchigliani requested Mr. Young to provide language to accommodate new hires who might not be licensed. She noted the same factor applied to the self-insured. She further noted the language in Exhibit C allowed for a supervising certified counselor to review the others work until they became properly licensed.
Mr. Young noted the system's goal would be to initially hire counselors who were already certified.
The Chair questioned what caused a program to be refused by the system. Ms. Sherman noted a program might be disapproved which did not have a good labor market or the system felt it would not succeed. She further noted it was very rare a program was disapproved which came from the self-insured. Chairman Giunchigliani suggested inserting language when no approval was received within a certain amount of days, then the program would be deemed approved.
Ms. Sherman stated when she handled out-of-state plans, the programs were shipped to her by mail and she approved them over the phone. Because laws differed from state to state, the programs would sometimes be based on criteria not consistent with Nevada's laws, sometimes programs were denied for this reason. She also noted the 14 day time frame was tight in out-of-state situations.
The Chair questioned if the system would continue to handle out-of-state claims or suggest the lump sum buyout in these situations.
Ms. Kimberly Morgan, Bill Draft Advisor, testified. Ms. Morgan commented it was mentioned part of the problem was decisions by the hearings and appeals officers often sent cases back to vocational rehabilitation. She questioned if any regulations should be put in the statutes to help out with the hearing officer situation. Mr. Young responded the regulations would be treated the same as the statutes. He noted the system made the new regulations very precise. Ms. Morgan noted she wanted to make sure language put in SB-316 did not take away authority the system thought they corrected by regulations. Mr. Young concurred with Ms. Morgan on this point. He noted he would review both the regulations and SB-316 to make sure there were no conflicts.
Mr. Young noted he felt out-of-state rehabilitation was a large problem. The average cost of out-of-state programs was twice the amount. The Oregon statutes state a person had to be available in Oregon for rehabilitation or were ineligible. Nevada currently had a regulation stating "you may be required to return to Nevada at your own expense to participate in rehabilitation." Mr. Young noted the system preferred to insert language in SB-316 to coincide with the Oregon statute. He noted an exception could be made in extreme circumstances such as blindness or if someone became paraplegic and his family resided in another state.
Chairman Giunchigliani commented in 1992 out of 3,461 claimants statewide who were receiving rehabilitation maintenance, 700 were out-of-state. In-state average cost per claim was $11,458 and out-of-state was $22,898.
Ms. Nancy Leeder, Attorney, Nevada Association for Injured Workers (NAIW), testified. She noted she was concerned with the feasibility of time limits. She commented the Chair mentioned a time limit must be set in order to have a viable and reasonable program. She noted in the cases NAIW received reversals from the appeals officer because it was not a viable program. One scenario for a reversals would be if a person was trained to work at the community college who could not speak or read english clearly, and yet he was not trained in english first.
The Chair mentioned she did not think these situations could be fixed with legislation, but some guidelines could be set up, time lines, and certification requirements. The Chair noted concern when there was not a direct equation to marketability and a plan was created.
Ms. Leeder noted rehabilitation expense would be cut if there was enforcement of the Americans With Disability Act (ADA). She noted when reasonable accommodations could be made, the employer was forced to take back a claimant who was not horrendously injured. Chairman Giunchigliani explained with the new ADA law, if the injured worker could made a claim, his employer could install reasonable accommodations for him, the employer had to take him back. She noted if the ADA law went into effect, it would cut down on a lot of rehabilitation. Ms. Leeder noted in some instances the employer was entitled to tax credits for making a reasonable accommodation.
Mr. Carpenter questioned what reasonable accommodation meant. Ms. Leeder noted possibly some equipment had to be moved around or raised. What percentage of the cases handled by NAIW fell into this category, questioned Mr. Carpenter. Ms. Leeder responded she was not sure, possibly about 10 percent.
Mr. Young noted in the adopted regulations there were requirements which stated the employer must make the accommodations mandated by the ADA before they could be picked up by SIIS. The current version which went into effect on July 26, 1992 applied to all employers with 25 people or less. After this year it would be with 15 or less. Potentially the ADA could have a dramatic impact on the number of people who received rehabilitation because the employers above the 25 person limit had a legal responsibility to do certain things.
The Chair asked if the system had an interagency agreement with the Bureau of Vocational Rehabilitation (BVR), and was it restricted to any area. Mr. Young responded affirmatively. BVR was used mostly in the rural areas since the system had its own staff in the metropolitan areas. Mr. Young also noted BVR had a right to decline a referral.
The Chair noted an amendment was discussed to continue with the interagency agreement and allow private rehabilitation. She asked if the system planned to continue to refer to private rehabilitation.
Mr. Young noted he was not in the position to make such a commitment. The Chair noted she would like Mr. Jayne to come back with a response.
Mr. Ray Badger, Nevada Trial Lawyers Association (NTLA), testified. Mr. Badger called the committee's attention to page 44, lines 33-35 of SB-316. Mr. Badger interpreted as follows, "If an insurer, SIIS or self-insured looks at a worker and says, I think that person was capable of earning 80 percent of their pre-accident wages, they don't give rehabilitation. It doesn't say you have to prove the person was employable." He noted there was no requirement for documentation of the insurers opinion. He further noted this was the worst section in SB-316.
Chairman Giunchigliani questioned if the committee was interested in moving in the direction of establishing caps, limiting lump sums, tightening eligibility, establishing more light duty and incorporating more of the DIR language which could get a handle on the cost.
Mr. Hettrick responded he agreed with any direction to save the system dollars and do the best job possible.
The Chair noted the fundamental threshold was to stop the cash flow, get the system solvent and stay above the $400 million.
Mr. Carpenter noted if the system was not fixed, the big losers would be the injured workers. If the taxpayers had to bail out a bankrupt system they would not be too happy. He noted vocational rehabilitation had to be zeroed in on since it was one of the largest cost drivers. Mr. Carpenter stressed the system had to be fixed.
The Chair noted the whole committee was in agreement with fixing the system. She commented the committee had to look at the true reform so in two years the same situation did not exist. If legislation was able to stem the cash flow and the solvency and keep above the $400 million, the system could be saved.
Chairman Giunchigliani stated on Monday, Managed Care would be heard. She noted the committee could be working late on Monday, Tuesday and Wednesday to work through actual votes on amendments. She mentioned focusing the deductible on the risk people, making the $400 mandatory deductible for whomever would go into the risk pool, and working on the $200 deductible.
There being no further business to come before committee, the meeting was adjourned at 5:05 p.m..
RESPECTFULLY SUBMITTED:
Jeanne Peyton
Committee Secretary
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Assembly Committee on Labor and Management
May 21, 1993
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