Bill Summary – FastDemocracy

Enrolled Copy                                                                         H.B. 105
                      PUBLIC EMPLOYEE DISABILITY BENEFITS
                                           AMENDMENTS
                                      2023 GENERAL SESSION
                                           STATE OF UTAH
                                 Chief Sponsor: Brian S. King
                               Senate Sponsor: Curtis S. Bramble
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 LONG TITLE
 General Description:
        This bill amends the Public Employees' Long-Term Disability Act.
 Highlighted Provisions:
        This bill:
        < establishes a three-year pilot period during which an eligible employee with a
 mental objective medical impairment qualifies for the same disability benefit as the
 eligible employee would receive for a physical objective medical impairment;
        < creates review and compliance requirements for an individual receiving a disability
 benefit; and
        < makes technical and corresponding changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        This bill provides a special effective date.
 Utah Code Sections Affected:
 AMENDS:
        49-21-102, as last amended by Laws of Utah 2020, Chapter 365
        49-21-401, as last amended by Laws of Utah 2018, Chapter 185
        49-21-402, as last amended by Laws of Utah 2019, Chapter 349
        49-21-406, as last amended by Laws of Utah 2019, Chapter 349
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       H.B. 105                                                                      Enrolled Copy
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 49-21-102 is amended to read:
        49-21-102. Definitions.
        As used in this chapter:
        (1) "Date of disability" means the date on which a period of total disability begins, and
 may not begin on or before the last day of performing full-duty work in the eligible employee's
 regular occupation.
        (2) (a) "Eligible employee" means any of the following [employee] employees whose
 employer provides coverage under this chapter:
        (i) (A) any regular full-time employee as defined under Section 49-12-102, 49-13-102,
 or 49-22-102;
        (B) any public safety service employee as defined under Section 49-14-102, 49-15-102,
 or 49-23-102;
        (C) any firefighter service employee or volunteer firefighter as defined under Section
 49-23-102 who began firefighter service on or after July 1, 2011;
        (D) any judge as defined under Section 49-17-102 or 49-18-102; or
        (E) the governor of the state;
        (ii) an employee who is exempt from participating in a retirement system under
 Subsection 49-12-203(4), 49-13-203(4), 49-14-203(1), or 49-15-203(1); and
        (iii) an employee who is covered by a retirement program offered by a public or private
 system, organization, or company designated by the Utah Board of Higher Education.
        (b) "Eligible employee" does not include:
        (i) any employee that is exempt from coverage under Section 49-21-201; or
        (ii) a retiree.
        (3) "Elimination period" means the three months at the beginning of each continuous
 period of total disability for which no benefit will be paid. The elimination period begins on
 the nearest first day of the month from the date of disability. The elimination period may
 include a one-time trial return to work period of less than 15 consecutive calendar days.
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       Enrolled Copy                                                                          H.B. 105
         (4) (a) "Gainful employment" means any occupation or employment position in the
 state that:
         (i) contemplates continued employment during a fiscal or calendar year; and
         (ii) would pay an amount equal to or greater than 40 hours per week at the legally
 required minimum wage, regardless of the number of hours worked.
         (b) "Gainful employment" does not mean that an occupation or employment position in
 the state is:
         (i) available within any geographic boundaries of the state;
         (ii) offered at a certain level of wages;
         (iii) available at a particular number of hours per week; or
         (iv) currently available.
         (5) "Maximum benefit period" means the maximum period of time the monthly
 disability income benefit will be paid under Section 49-21-403 for any continuous period of
 total disability.
         (6) "Monthly disability benefit" means the monthly payments and accrual of service
 credit under Section 49-21-401.
         (7) "Objective medical impairment" means an impairment resulting from an injury or
 illness [which] that is diagnosed by a physician and [which] that is based on accepted objective
 medical tests or findings rather than subjective complaints.
         (8) [(a)] "Ongoing disability" means, after the elimination period and the first 24
 months of disability benefits, the complete inability due to objective medical impairment, as
 determined under [Subsection (8)(b)] Subsection 49-21-401(9), to engage in any gainful
 employment which is reasonable, considering the eligible employee's education, training, and
 experience.
         [(b) For purposes of Subsection (8)(a), inability is determined:]
         [(i) based solely on physical objective medical impairment; and]
         [(ii) regardless of the existence or absence of any mental impairment.]
         (9) "Own occupation disability" means the complete inability, due to objective medical
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        H.B. 105                                                                      Enrolled Copy
 impairment, whether physical or mental, to engage in the eligible employee's regular
 occupation during the elimination period and the first 24 months of disability benefits.
         (10) "Physician" means a licensed physician.
         (11) "Pilot period" means the period beginning on July 1, 2023, and ending on June 30,
 2026.
         [(11)] (12) "Regular monthly salary" means the amount certified by the participating
 employer as the monthly salary of the eligible employee, unless there is a discrepancy between
 the certified amount and the amount actually paid, in which case the office shall determine the
 regular monthly salary.
         [(12)] (13) "Regular occupation" means either:
         (a) the primary duties performed by the eligible employee for the 12 months preceding
 the date of disability; or
         (b) a permanent assignment of duty to the eligible employee, as long as the eligible
 employee has actually performed all the required duties of the permanent assignment of duty.
         [(13)] (14) "Rehabilitative employment" means any occupation or employment for
 wage or profit, for which the eligible employee is reasonably qualified to perform based on
 education, training, or experience.
         [(14)] (15) "Total disability" means:
         (a) own occupation disability; or
         (b) ongoing disability.
         [(15)] (16) (a) "Workers' compensation indemnity benefits" means benefits provided
 that are designed to replace wages under Title 34A, Chapter 2, Part 4, Compensation and
 Benefits, including wage replacement for a temporary disability, temporary partial disability,
 permanent partial disability, or permanent total disability.
         (b) "Workers' compensation indemnity benefits" includes a settlement amount
 following a claim for indemnity benefits.
         Section 2. Section 49-21-401 is amended to read:
         49-21-401. Disability benefits -- Application -- Eligibility.
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        Enrolled Copy                                                                           H.B. 105
        (1) An eligible employee shall apply for long-term disability benefits under this chapter
 by:
        (a) completing an application form prepared by the office;
        (b) signing a consent form allowing the office access to the eligible employee's medical
 records; and
        (c) providing any documentation or information reasonably requested by the office.
        (2) (a) If an eligible employee is unable to apply on the employee's own behalf, the
 application may be made by a person who is:
        (i) the attorney for an eligible employee; or
        (ii) appointed as a conservator or guardian of the eligible employee.
        (b) A person described in Subsection (2)(a), may not make an application for a
 deceased employee.
        (3) Upon request by the office, the participating employer of the eligible employee
 shall provide to the office documentation and information concerning the eligible employee.
        (4) The office:
        (a) shall review all relevant information;
        (b) may request additional information; and
        (c) shall determine whether or not the eligible employee has a total disability.
        (5) (a) If the office determines that the eligible employee has a total disability due to
 accidental bodily injury or [physical] illness [which] that is not the result of the performance of
 an employment duty, the eligible employee shall receive a monthly disability benefit equal to:
        (i) two-thirds of the eligible employee's regular monthly salary, for each month the
 total disability continues beyond the elimination period, not to exceed the maximum benefit
 period; minus
        (ii) any required reductions or reimbursements under Section 49-21-402.
        (b) For an eligible employee under an own occupation disability, the office shall, at the
 end of the two-year disability period or when a claim for total disability is made by an eligible
 employee:
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        H.B. 105                                                                         Enrolled Copy
         (i) review and determine whether the eligible employee qualifies for ongoing disability
 benefits;
         (ii) make the determination under Subsection (5)(b)(i) as of the day after the eligible
 employee's own occupation disability benefits end;
         (iii) consider only [physical] objective medical impairment that the office determines
 as a disabling condition on the date of disability; and
         (iv) exclude any new intervening causes or new diagnoses during the own occupation
 disability period.
         [(6) If the office determines that the eligible employee has a total disability due to
 psychiatric illness, the eligible employee shall receive:]
         [(a) a maximum of two years of monthly disability benefits equal to two-thirds of the
 eligible employee's regular monthly salary for each month the total disability continues beyond
 the elimination period;]
         [(b) a maximum of $10,000 for psychiatric expenses, including rehabilitation expenses
 preauthorized by the office's consultants, paid during the period of monthly disability benefits;
 and]
         [(c) payment of monthly disability benefits according to contractual provisions for a
 period not to exceed five years if the eligible employee is institutionalized due to psychiatric
 illness.]
         [(7)] (6) (a) An eligible employee shall receive a monthly disability benefit equal to
 100% of the eligible employee's regular monthly salary for each month the total disability
 continues beyond the elimination period, not to exceed the maximum benefit period, but
 reduced by any required reductions and reimbursements under Section 49-21-402, if the office
 determines that the employee meets all of the following:
         (i) the eligible employee has a total disability:
         (A) during the pilot period, due [solely] to a physical objective medical impairment or
 a mental objective medical impairment; or
         (B) except as provided in Subsection (6)(b), after the pilot period, due to a physical
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        Enrolled Copy                                                                             H.B. 105
 objective medical impairment;
         (ii) the [physical] objective medical impairment described in Subsection [(7)(a)(i)]
 (6)(a)(i) resulted from physical, external force or violence [as a result of] to the body of the
 eligible employee in the performance of an employment duty; and
         (iii) the eligible employee received workers' compensation indemnity benefits for the
 [physical] objective medical impairment described in Subsection [(7)(a)(i)] (6)(a)(i).
         (b) If an eligible employee qualifies for a total disability during the pilot period, the
 office shall determine whether the employee has a total disability after the pilot period due to a
 physical objective medical impairment or a mental objective medical impairment.
         (c) An eligible employee who receives workers' compensation indemnity benefits for [a
 physical] an objective medical impairment is not guaranteed to receive the 100% monthly
 disability benefit described in Subsection [(7)(a)] (6)(a).
         [(8)] (7) (a) Successive periods of disability are considered as a continuous period of
 disability if the period of disability:
         (i) results from the same or related causes;
         (ii) is separated by less than six months of continuous full-time work at the individual's
 usual place of employment; and
         (iii) commences while the individual is an eligible employee covered by this chapter.
         (b) The inability to work for a period of less than 15 consecutive calendar days is not
 considered as a period of disability.
         (c) If Subsection [(8)(a)] (7)(a) or (b) does not apply, successive periods of disability
 are considered as separate periods of disability.
         [(9)] (8) The office may, at any time, have any eligible employee claiming to have a
 disability examined by a physician chosen by the office to determine if the eligible employee
 has a total disability.
         (9) (a) For purposes of determining whether an eligible employee has an ongoing
 disability, inability is determined:
         (i) during the pilot period, due to physical objective medical impairment or mental
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        H.B. 105                                                                        Enrolled Copy
 objective medical impairment; or
        (ii) except as provided in Subsection (9)(b), after the pilot period, due to a physical
 objective medical impairment.
        (b) If an eligible employee has a total disability during the pilot period, the office shall
 determine whether the employee has an ongoing disability after the pilot period due to a
 physical objective medical impairment or a mental objective medical impairment.
        (10) A claim brought by an eligible employee for long-term disability benefits under
 the Public Employee's Long-Term Disability Program is barred if it is not commenced within
 six months from the eligible employee's date of disability, unless the office determines that
 under the surrounding facts and circumstances, the eligible employee's failure to comply with
 the time limitations was reasonable.
        (11) (a) If the office denies or terminates a claim for long-term disability benefits, the
 eligible employee shall have the right to appeal the denial or termination:
        (i) to the executive director of the office within 60 days [of] after the day of the denial
 or termination of long-term disability benefits; and
        (ii) in accordance with Section 49-11-613.
        (b) An appeal of a denial or termination of long-term disability benefits described in
 Subsection (11)(a) is barred if it is not commenced within the time limit described in
 Subsection (11)(a).
        (12) Medical or psychiatric conditions [which existed prior to] that existed before
 eligibility may not be a basis for disability benefits until the eligible employee has had one year
 of continuous eligibility in the Public Employees Long-Term Disability Program.
        (13) If there is a valid benefit protection contract, service credit shall accrue during the
 period of total disability, unless the disabled eligible employee is:
        (a) exempted from a system;
        (b) eligible to retire with an unreduced retirement allowance; or
        (c) otherwise ineligible for service credit.
        (14) Regardless of any medical evidence provided by the employee to support the
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        Enrolled Copy                                                                             H.B. 105
 application for disability, an employee is not eligible for long-term disability benefits during
 any period in which the employee:
           (a) makes a claim that the employee is able to work; or
           (b) has a pending action in a court or before any federal, state, or local administrative
 body in which the employee has made a claim that the employee is able to work.
           (15) Notwithstanding the provisions of Section 49-11-618, upon written request by an
 employer, information obtained under this part may, upon an order of a court or an
 administrative law judge, be released to an employer who is a party in an action under
 Subsection (14).
           (16) On