Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 105 (2023GS)

Sponsor

Rep. King, Brian S.

Final action

Governor Signed 3/15/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• 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.

Every vote on this bill

Bill text

PUBLIC EMPLOYEE DISABILITY BENEFITS
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brian S. King
Senate Sponsor: 
Curtis S. Bramble
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
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.
(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
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.
(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:
(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
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
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
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 or after May 1, 2025, but on or before November 1, 2025, the office shall
provide a written electronic report to the Retirement and Independent Entities Committee
regarding the costs and benefits of the changes to the disability benefits during the pilot period.
Section 3. Section 
49-21-402
 is amended to read:
49-21-402.
Reduction or reimbursement of benefit -- Circumstances --
Application for other benefits required.
(1) A monthly disability benefit may be 
reduced, suspended, or
 terminated unless:
(a) the eligible employee [
is under the
] 
participates in
 ongoing care and treatment [
of a
physician or physician assistant other than the eligible employee; and
] 
in accordance with
Subsection 
49-21-406
(3) or (4); and
(b) the eligible employee provides the information and documentation requested by the
office.
(2) (a) The monthly disability benefit shall be reduced or reimbursed by any amount
received by, or payable to, the eligible employee for the same injury or illness that is the basis
for the monthly disability benefit from the following sources:
(i) workers' compensation indemnity benefits, regardless of whether the amount is
received as an ongoing monthly benefit, as a lump sum, or in a settlement with a workers'
compensation indemnity carrier;
(ii) any money received by judgment, legal action, or settlement from a third party
liable to the employee for the monthly disability benefit;
(iii) automobile no-fault, medical payments, or similar insurance payments;
(iv) any money received by a judgment, settlement, or other payment as a result of a
claim against an employer; or
(v) annual leave or similar lump-sum payments.
(b) The monthly disability benefit shall be reduced or reimbursed by any amount
received by, or payable to, the eligible employee for the same period of time during which the
eligible employee is entitled to receive a monthly disability benefit from the following sources:
(i) social security disability benefits, including all benefits received by the eligible
employee, the eligible employee's spouse, and the eligible employee's children as determined
by the Social Security Administration;
(ii) unemployment compensation benefits;
(iii) sick leave benefits; or
(iv) compensation received for employment, including self-employment, except for
eligible amounts from approved rehabilitative employment in accordance with Section
49-21-406
.
(3) The monthly disability benefit shall be reduced by any amount in excess of
one-third of the eligible employee's regular monthly salary received by, or payable to, the
eligible employee from the following sources for the same period of time during which the
eligible employee is entitled to receive a monthly disability benefit:
(a) any retirement payment earned through or provided by public or private
employment; and
(b) any disability benefit, other than social security or workers' compensation
indemnity benefits, resulting from the disability for which benefits are being received under
this chapter.
(4) After the date of disability, cost-of-living increases to any of the benefits listed in
Subsection (2) or (3) may not be considered in calculating a reduction to the monthly disability
benefit.
(5) Any amounts payable to the eligible employee from one or more of the sources
under Subsection (2) are considered as amounts received whether or not the amounts were
actually received by the eligible employee.
(6) (a) An eligible employee shall first apply for all disability benefits from
governmental entities under Subsection (2) to which the eligible employee is or may be
entitled, and provide to the office evidence of the applications.
(b) If the eligible employee fails to make application under this Subsection (6), the
monthly disability benefit shall be suspended.
(7) During a period of total disability, an eligible employee has an affirmative duty to
keep the program informed regarding:
(a) the award or receipt of an amount from a source that could result in the monthly
disability benefit being reduced or reimbursed under this section within 10 days [
of
] 
after the
day of
 the award or receipt of the amount; and
(b) any employment, including self-employment, of the eligible employee and the
compensation for that employment within 10 days [
of
] 
after
 beginning the employment or a
material change in the compensation from that employment.
(8) The program shall use commercially reasonable means to collect any amounts of
overpayments and reimbursements.
(9) (a) If the program is unable to reduce or obtain reimbursement for the required
amount from the monthly disability benefit for any reason, the employee will have received an
overpayment of monthly disability benefits.
(b) If an eligible employee receives an overpayment of monthly disability benefits, the
eligible employee shall repay to the office the amount of the overpayment, plus interest as
determined by the program, within 30 days from the date the overpayment is received by:
(i) the eligible employee; or
(ii) a third party related to the eligible employee.
(c) The executive director may waive the interest on an overpayment of monthly
disability benefits under Subsection (9)(b) if good cause is shown for the delay in repayment of
the overpayment of monthly disability benefits. 
Section 4. Section 
49-21-406
 is amended to read:
49-21-406.
Rehabilitative employment -- Interview by disability specialist --
Maintaining eligibility -- Additional treatment and care.
(1) (a) If an eligible employee, during a period of total disability for which the monthly
disability benefit is payable, engages in approved rehabilitative employment, the monthly
disability benefit otherwise payable shall be reduced:
(i) by an amount equal to 50% of the income to which the eligible employee is entitled
for the employment during the month; and
(ii) so that the combined amount received from the rehabilitative employment and the
monthly disability payment does not exceed 100% of the eligible employee's monthly salary
prior to the employee's disability.
(b) This rehabilitative benefit is payable for up to two years or to the end of the
maximum benefit period, whichever occurs first.
(2) 
(a) The office shall review an eligible employee's total disability at least one time
each year.
[
(a) Each 
] 
(b) The office shall interview each
 eligible employee receiving a monthly
disability benefit [
shall be interviewed by the office
].
[
(b)
] 
(c)
 The office may refer the eligible employee to a rehabilitative or vocational
specialist for a review of the eligible employee's condition and a written rehabilitation plan and
return to work assistance.
(3) If an eligible employee receiving a monthly disability benefit fails to participate in
an office-approved rehabilitation program within the limitations set forth by a physician or
physician assistant, the monthly disability benefit may be 
reduced,
 suspended
,
 or terminated.
(4) The office may, as a condition of paying a monthly disability benefit, require that
the eligible employee receive medical care and treatment if that treatment is reasonable or usual
according to current medical practices.
Section 5. 
Effective date.
This bill takes effect on July 1, 2023.