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Capitol News Update     

 

May 14, 2012 

 

           It now appears that the transfer of the state match for Medicaid funding for outpatient behavioral health services from the Oklahoma Healthcare Authority (OHCA) to the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) is a fait accompli. When the governor first recommended the transfer in her state of the state message it seemed the move would be controversial. Although there has been quite a bit of discussion by providers, most opposition seemed to dissolve or remain in the background.

            The transfer may not be totally as the governor originally recommended. For one thing federal law has requirements regarding a single Medicaid agency. Obviously this does not include the state match funding because other agencies use state funds appropriated to them for their Medicaid match. The original recommendation was to transfer both the "policy setting and enactment responsibility" as well as the state funding for behavioral health services. What federal law requires regarding policy and collaboration with CMS may be more complicated. As usual, the devil is in the details. But usually the party with the money has a lot to say about the policy.

            Further, the amount recommended by the governor to be transferred was $136 million. I've been told that currently the actual amount of the transfer is to be $113 million, and that residential services are not included. Of course, we won't know if that will be the final agreement until the appropriation bill becomes public. This could make sense since some residential treatment is provided by acute care hospitals that will remain under OHCA.   

            A bigger problem for OHCA is that it requires an additional $109 million to continue current services at the FY-2012 level. If OHCA does not receive that funding, provider rates could be cut. There is an option to cut some non-mandated services, but cutting most of those is simply not feasible. Given previous provider cuts, a Medicaid crisis could be building in the near future.


 

          

 

 

 

Attorneys point out dangers, advantages for employers under new workers' comp laws

By Kirby Lee Davis 

The Journal Record

TULSA - Oklahoma's workers' compensation law revisions could make businesses responsible for employee eyeglasses, artificial limbs and other damaged personal property for the rest of the worker's life, according to Eaton and Sparks attorney Bill Sparks.

Potentially heightened liability under definitions of what is not compensable may also affect a wide variety of employer policies, he said Tuesday.

On the other hand, the new code also improves employer standings in several key areas, according to Crowe & Dunlevy attorney Madalene Witterholt.

"From an employer's perspective, I think things are getting better," Witterholt said. "They're not as good as they were in the mid-1990s, but they're not as bad as they were in 1991."

Coming from opposite sides of the workers' comp arena, these two lawyers highlighted several important changes in state workers' comp law during a Tulsa Area Employer Council meeting at Tulsa's downtown DoubleTree hotel.

Witterholt said she sees a strong employer advantage in new rules that make workers prove that employer actions or decisions were the major cause of compensable injuries. She said this evidence standard change and others will help lower workplace confusion.

"This is the absolute attempt by the Legislature to eliminate pre-existing claims," Sparks said. "This model now says that 50 percent and a grain of sand are what is required to prove it's a compensable injury. This was a goal set out by certain members of the Legislature to change it from pre-existing condition to try and limit the number of claims. It's a cost-cutting measure."

Both attorneys drew concerns over Section 308 definition changes.

Sparks said that new elements in definition 10d open employer liability to damaged personal property, from dentures to artificial joints.

"This now makes the employer responsible if you damage your knee replacement," he told the audience of corporate and government human relations executives. "And you're responsible not just for this incident, but for the rest of their life."

Witterholt asked Sparks if he thought this could award an employee free hearing aids for life. Sparks said it might if a worker's hearing aid were run over by an employer's forklift. He questioned whether a court might take that stance with a simple pair of reading glasses.

"This is going to become a very interesting area about what a personal injury is because it includes personal property," he said, suggesting it could invent a new body of law.

Witterholt said she appreciated idiopathic cause definition changes in definition 10e, now holding that a compensable injury had to result or occur from work. Sparks said that change was intended to overturn a 2002 Oklahoma Supreme Court decision in the case Planner v. Tulsa Public Schools. He said this change also eliminates a body of law in existence for decades.

"This will be interesting to see what will happen when this is challenged," he said.

Witterholt said she saw positive results coming from new requirements for objective medical evidence. While he didn't disagree, Sparks said that element of the new code contradicts other elements requiring American Medical Association guidelines. Since other sources of medical evidence may embrace impairment guidelines higher than AMA standards, Sparks said this could end up costing businesses more.

"This is going to open up new litigation areas," he said. "I don't think that's what they intended."

Witterholt countered that it also provides a solid foundation for arguing out smaller, cheaper settlements.

"I believe we'll get some money saved out of this one," she said.

Both attorneys voiced concerns over Section 312, outlining injuries that are not compensable. Not only does that throw such cases into the regular court system, where businesses could face broader general liability, it also affects an injured worker's financially driven decision on whether to return to work or seek out an attorney.

"I don't know if I'd want to be covered under this section," Sparks said. "Trust me. I would rather sue you in the district court. If I was an employer, I would be terribly unhappy about this."

Sparks said that this change could reshape a multitude of employer policies, such as working at home, placement of authorized smoking places, or how and where workers take drug tests. Injuries linked to such activities may now result in much greater employer liability.

"You have to think about how you're going to approach your employment processes now," he said.


Fallin inks bills on energy savings, abortion

By Sean Murphy - Associated Press

OKLAHOMA CITY - Gov. Mary Fallin signed more than 30 bills on Tuesday, including a measure requiring state agencies and colleges to save at least 20 percent in energy costs by 2020.

Other measures Fallin signed into law include an anti-abortion bill that holds doctors civilly liable for failing to follow informed consent laws and a bill that restricts the sale of a key ingredient used to make methamphetamine.

Fallin held a bill-signing ceremony for the energy savings measure, which legislative analysts project could save the state as much as $500 million over the next eight years.

"My goal has always been to deliver a government that is smaller, smarter and more cost-efficient," Fallin said. "By pursuing these energy conservation reforms, we will be able to do just that."

A similar energy savings initiative launched at Oklahoma State University in Stillwater saved an estimated $19 million in energy costs since 2007 by requiring staff to do things like turn off lights and computer screens at night, OSU President Burns Hargis said.

"A lot of it is just common sense," Hargis said.

The anti-abortion bill applies to cases in which an abortion provider negligently violates informed consent laws related to abortions. It specifically allows women in such cases - or their parents or guardian if they're minors - to sue the provider, the prescriber of abortion-inducing drugs and any licensed medical provider who referred them to the abortion provider.

The meth-ingredient bill that Fallin signed further restricts the sale of pseudoephedrine, commonly found in cold and allergy medicines and also used to manufacture meth. The bill links Oklahoma to a national pseudoephedrine tracking system and limits the amount of pseudoephedrine products a person can purchase each month.

Oklahoma drug agents and all of the state's district attorneys pushed early in the session for a bill that would have required a doctor's prescription to purchase cold and allergy medicines containing pseudoephedrine, but that proposal was quickly defeated amid opposition from drug company lobbyists. The bill that Fallin signed Tuesday was a compromise supported by pharmacy groups and the Oklahoma Medical Association.


GOP incumbents facing primary challengers

By Sean Murphy - Associated Press

OKLAHOMA CITY - Now that the Republican Party in Oklahoma has completed its sweep of statewide offices and extended its majorities in the House and Senate, the GOP is beginning to experience a few growing pains.

In a state essentially controlled by Democrats since statehood, Republicans once had to search far and wide for challengers in state legislative races. Now, the party is facing a relatively new phenomenon: GOP incumbents facing challenges from members of their own party, often right-wing opponents energized by tea party-style enthusiasm.

Three of Oklahoma's four Republican congressmen are facing primary challenges, as are a quarter of the incumbent Republican state senators who are seeking reelection. More than a dozen Republican House members face a primary opponent in Oklahoma's June 26 primary.

"All revolutions eat their young," said longtime Democratic strategist Ben Odom. "At some point, the people who were the first wave of change don't change enough for the true believers, and that's what's going on here."

In the conservative Oklahoma City suburb of Edmond, Republican incumbent Clark Jolley has drawn a tea party-aligned challenger in Paul Blair, a self-described "true constitutional conservative" who has attempted to paint Jolley as a political insider. Despite Jolley's track record of sponsoring tough anti-abortion measures and one of the most ambitious plans to cut and ultimately eliminate the state's income tax, Blair contends Jolley is not conservative enough.

"I've been disappointed in the behavior of my own Republican Party," said Blair, a former professional football player and now a pastor at Fairview Baptist Church in Edmond. "They're playing the same games that were played by Democrats for so many years. They're more than happy to reach out to the average American patriot during the campaign, and then when the Legislature starts they want to leave them alone."

But Jolley says much of the angst among the GOP's right wing is a result of politics in Washington, not Oklahoma.

"We are not Washington, D.C., nor are we governing like Washington," said Jolley, the chairman of the powerful Senate Appropriations Committee. "(Gov.) Mary Fallin is not Barack Obama, and I'm not (U.S. Senate Majority Leader) Harry Reid.

"We are governing responsibly and we're governing conservatively, and we're on the right track here in Oklahoma."

As recently as 1992, Democrats had huge majorities in the state House and Senate, the governor's office, four of the state's six congressional seats and one of the two U.S. Senate seats. Now, Republicans control every statewide elected office, both chambers of state government, both U.S. Senate seats and four of the five congressional seats, with a chance at capturing the fifth after the lone congressional Democrat U.S. Rep. Dan Boren decided not to seek another term.

"There were times growing up in Ottawa County, they'd throw me out of the pickup if they found out I was a Republican," joked Steve Edwards, the chairman of the Republican Party in the early 2000s. "There's no question that there were points in history when it was difficult to find Republicans to run. Outside of Tulsa, Bartlesville, Oklahoma City and places like that, it was very difficult to find Republican candidates."

Current Oklahoma GOP Chairman Matt Pinnell acknowledged that having numerous Republican primary fights is a relatively new phenomenon, but said it's a natural result of a growing party.

"We have a lot of Republicans under one roof, and we don't all agree 100 percent of the time," Pinnell said. "In some of these cases, they want to run now and don't want to wait for term limits.

"Primaries, hopefully, are a healthy process. We don't want to see them get too negative, and I don't think they will."

Oklahoma Democratic Party Chairman Wallace Collins said he sees the issue as more than growing pains.

While many of the GOP primaries are in traditionally conservative districts, and some do not have a Democratic candidate, Collins believes Democrats elsewhere could ultimately gain seats in the Legislature by taking advantage of a GOP that he says is increasingly being pulled further to the right.

"I see it as a divisive faction within the Republican Party," Collins said. "I think there are deep divisions, and that's evidenced by so many of those candidates drawing opponents."

 

 

Lawmaker says GOP assaulting women's rights

By Ken Miller

Associated Press

OKLAHOMA CITY - A Democratic state senator said Tuesday that the election of Oklahoma's first female governor hadn't stopped what she called a Republican assault on the rights of women with proposals such as the now-defeated "personhood" bill and a ballot proposal asking voters to wipe out affirmative action programs.

The personhood bill would have granted fertilized human eggs in the rights and privileges of Oklahoma residents. The anti-abortion bill died in the state House after passing the Senate earlier this year.

"What's going on is insulting to women," said state Sen. Constance Johnson, D-Oklahoma City. "And to suggest that's not an assault on women is adding insult to injury."

Johnson said during a news conference that she had hoped for better when Republican Gov. Mary Fallin was elected in 2010.

"I was looking forward to her being more characteristically nurturing and things that women bring to the table in terms of relationships and understanding needs and we've not seen that," Johnson said.

"We've seen a governor who, pretty much is ... she's one of the good old boys," she added.

A spokesman for Fallin did not immediately respond to a phone call and email for comment.

Oklahoma Republican Party Chairman Matt Pinnell called the comments a "tired Democratic talking point to distract us from the real issue" of creating jobs.

"We are certainly sensitive to, and feel like need to be working on, policies that can get more women out of poverty and get more women back into the workforce and empowering women to be successful in America today," Pinnell said.

Oklahoma Democratic Party Chairman Wallace Collins also expressed concern about what he considers an anti-woman agenda, pointing to a bill that would exempt out-of-state insurance companies from certain health coverages required by state law, such as mammograms, pelvic exams and cervical cancer screenings. The bill is now in a joint House-Senate conference committee.

"We had to force insurance companies to cover these things," Collins said. "Senate Bill 1059 would take back all these gains that we have made" in expanding coverage.

The Senate author of the bill, state Sen. Bill Brown, R-Broken Arrow, also did not immediately return a phone call seeking comment.

Pinnell said it's Democratic policies that are hurting women.

"You have women who can't find jobs today because of the economy, because of the policies and the strangling regulations at the federal level," he said.


 

 

Sardis task force appointed

By M. Scott Carter 

The Journal Record

OKLAHOMA CITY - The federal mediator overseeing the lawsuit between the state and the Choctaw and Chickasaw nations has appointed a 19-member task force to discuss and consider possible solutions to the problem, Republican Gov. Mary Fallin, Choctaw Chief Greg Pyle and Chickasaw Gov. Bill Anoatubby said Monday.

The announcement is the latest move in a yearlong legal battle over the Oklahoma City Water Utilities Trust's purchase of water storage rights at the Sardis Lake Reservoir in southeastern Oklahoma.

In a joint media release, court-appointed mediator Francis E. McGovern announced the appointments, describing members of the task force politically and demographically diverse Oklahomans.

In addition to Fallin, Anoatubby and Pyle, the group includes Oklahoma City oil and gas executives Harold Hamm, the CEO of Continental Resources; J. Larry Nichols, executive chairman of Devon Energy Corp.; and Aubrey McClendon, CEO of Chesapeake Energy Corp.

Other members of the task force include Gary Batton, assistant chief of the Choctaw Nation; Clay Bennett, co-owner of the Oklahoma City Thunder; Secretary of State Glenn Coffee; Oklahoma City Manager Jim Couch; Pennie Embry, executive director of Oklahomans for Responsible Water Policy; Amy Ford, executive director of Oklahomans for the Protection of the Arbuckle Simpson Aquifer; Pete Delaney, CEO of OGE Energy Corp.; Robert Henry, Oklahoma City University president and former federal judge; Mike Samis; Jason Hitch; Brian McClain; Mike Cawley; and David Thompson.

Fallin, Pyle and Anoatubby praised the group's membership, saying their efforts could help resolve the lawsuit.

"Water rights and water security are linked to both economic and quality of life issues," the trio said in a media statement. "Our hope is that this new task force will help to pave the way toward an agreement that is fair and beneficial to all relevant parties."

Deliberations of the task force would be governed by the confidentiality provisions of the court's agreed mediation order, McGovern said.

"The mediation will be conducted pursuant to Rule 408, F.R.E. Any and all communications, both written and oral, with the mediator or between or among the parties that are made in the course of the mediation shall be deemed confidential and inadmissible in any judicial or administrative proceeding for any purpose," according to the order.

McGovern said he would report periodically to federal Judge Lee West concerning the progress of the discussions of the task force.


 

Have a good week.  Give me a call at 918.671.6860 if I can be of help in any way

                  Steve Lewis

 
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2012 DEADLINES
 



This Week's News
Attorneys Point Out Dangers of New Workers Comp
Fallin Inks Bills
GOP Incumbents Facing Challengers
GOP Assulting Women's Rights
Sardis Task Force Appointed