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Workers’ Compensation Advisory Council October 8, 2003 Minutes Voting Members: Paul Bailey Wayne Ellefson David Olson Susan Olson for James Cavanaugh Reed Pollack Brad Robinson Gary Thaden Ray Waldron Voting Members Absent: Mike Hickey Voting Members Excused: Stan Daniels Julie Schnell Glen Johnson Non-Voting Members: Representative Dan Dorman Senator Linda Higgins Representative Joe Mullery Non-Voting Members Absent: Senator Geoff Michel Staff: David Berry Scott Brener Debbie Caswell Jim Feckey Beth Hargarten Sandy Keogh Nancy Leppink Cindy Miner

Phil Moosbrugger Grace Schwab Omar Syed Jim Vogel Jana Williams Visitors: Craig Anderson; MWCIA Barbara Baum; MNAPTA Ray Bohn; WCRA Colleen Colburn; Colburn; MN Chiropractic Chiropractic Assn Buzz Cummins; WCRA Dianna Edwards; SEIU 113 Jennifer Dunn; MARP Kevin Gregerson; Wilson-McShane Judy Hawley; Hawley; MN APTA Mike Johns; RTW Todd Johnson; WCRA Larry Koll; Koll, Morrison, Charpentier & Hagstrom Lousie Montague; Montague; MOTA/North Memorial Andy Morrison; Koll, Morrison, Charpentier & Hagstrom David Kunz; MN Chi Chiropractic ropractic Assn Tom Lehman; MN Hospi Hospital tal Assn Tammy Lohman; Commerce Mike KcKenna Sandy Olevtel; PNC Robin Peterson; MN APTA Mark Pixuer; Medical Adva Advanced nced Pain Sp Specialists ecialists Jim Sieben; Sieben; Metro Anesthesia Network Erin Sexton; MN M Medical edical Assn Scott Sexton; Corvelle Marshal Thiel; Medical Advanced Pain Specialists Anna Thomspon

Commissioner Scott Brener called the meeting to order at 9:38 a.m. Roll was called. A quorum was not present on the employee side.

 

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III. A. Commissioner’s Update

Commissioner Scott Brener asked members to review their information on the alternate list in the meeting materials, make any corrections needed and return it to Deb Caswell. The Department of Labor and Industry (DLI) is trying to emphasize the importance of alternates so that a quorum can be assured. Brener noted a variety of stakeholders have asked about the status of the Office of Administrative Hearings (OAH) and whether its timelines have been extended due to some layoffs that took place there last spring. spring. Brener met with then Chief Chief Administrative Administrative Law Judge Ken  Nickolai about three weeks ago ab about out this issue. According to Nickolai, there are are two principal principal  jurisdictionall areas; the seven jurisdictiona seven-county county metro metro area and Duluth. Duluth. The metro and most of the out out state runs at traditionally a 12 to 14 month time period. In Duluth they went from three judges, down to one and have since gone back up to two. They also installed some video co conferencing nferencing equipment equipment in Duluth so they can interact with the the Minneapolis judges. Therefore, Nickolai Nickolai reports they have gone from a traditionally 12 to 14 month track to a 14 to 16 month track. However, with the video conferencing, they expect that time period to be back down to the traditional 12 to 14 month period  by February. Although there there is a lot of “static” ou outt there, the tim timelines elines at OAH hav havee not altered. Brener reported that Ken Nickolai is now serving as the commissioner at the Public Utilities Commission and Bruce Johnson is the Acting Chief Administrative Administrative Law Judge. Brener announced the merger of the department’s Investigative Services Unit and the Special Compensation Compensation Fund. That merger w will ill take place in tthe he next couple of weeks. DLI hopes this merger will better integrate its fraud services with its Special Compensation Compensation Fund activity. III. B. Rate Oversight Commission  Commission 

Craig Anderson, the actuary from the Minnesota Workers  Compensation Insurers   Association (MWCIA), (MWCIA), presented their 2004 Ratemaking Report. Report. An Executive Summa Summary ry of this report was in the meeting materials. materials. ’



The report contains average indicated workers’ compensation pure premium base rates from loss experience in Minnesota only. The report was prepared in compliance with Minnesota Statutes § 79.55 and § 79.61and various related related regulations. This report was made available available on the MWCIA Web site in August. The full report is availab available le in a ring binder, upon request. request. Anderson gave the background for the ratemaking report. The pure premium base level is an arbitrary level defined by statute and it may, or may not, impact an insurance carrier’s bottom line  premium and and the prices they quote quote in the ma market rket place. This is because the pure pure premiums premiums do not include several factors such as reserves for claims still in the system after eight years, changes in claim payment patterns between the time the MWCIA collected the data and the time that rates or  prices may be in effect, effect, Minnesota-specific Minnesota-specific taxes taxes or assessments including including the Special Special Compensati Compensation on Fund assessment, carrier expenses such as claim adjustment expenses, general expenses and commissionss are not included in the MWCIA rates. commission Anderson reported reported that the Assigned Risk Plan adjusts the base rates by a factor of 2.2 or they increase its rates by 120 percen get the filed rate level produce produces. s. for He their also noted insurance companies utilize a variety of percent pricingt to resources to develop theirit final costs employers. The

 

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insurers employ rate deviations, experience for other merit rate plans, schedule rating plans, retrospective rating plans, premium discount deductibles, dividend plans and other pricing options that are available to various employers. Anderson said the 2004 ratemaking report reflects an overall decrease of 0.3% from the January 1, 2003, pure premium premium base rates. The MWCIA looked at policy years 2000 2000 and 2001and the two most recent accident years of claims experience and that indication generated a 0.5% decrease. They also did an analysis of the automatic increase in the permanent total minimum  benefits and Anderson Anderson thinks this this went from something something around the the neighborho neighborhood od of 456 up to 467 467 and was an increase of 0.2%. The combination combination of the 0.5% decrease and the 0.2% increase yielded the 0.3% decrease that was the overall average. Anderson pointed out that the executive summary shows how this has been distributed among the various industry industry groups. He reported the base rate level has decreased decreased in seven of the last nine years. The pure premium premium level is about 9% lower than it was prior prior to the start of competitiv competitivee rating in 1983, 20 years ago. More importantly, importantly, the overall rate level change change since 1998 has been fairly stable. It is down a little less than 5% in the last five years and there is a primary primary reason for this; basically, because the voluntary market’s frequency of claims has been holding fairly steady over the last five years. They saw a significant decrease in case frequency frequency throughout throughout the 1990s but in the last four to five years that has been fairly stable and their rates are much more sensitive to frequency than they are to severity, severity, to the average cost per case. Anderson thinks, thinks, barring law changes and holding all other things constant, if case frequency stays fairly stable the rates that they  produce at MWCIA MWCIA are not going to change much much either in the short short or long term term.. He said he would  be remiss if he did did not comm comment ent a little bit ab about out case severity and and about medical medical costs, in general, general, and gave some aggregate aggregate statistics. Medical benefits continue continue to increase at levels that outstrip outstrip inflation. The overall Minneapo Minneapolis-St. lis-St. Paul medical medical CPI has increased about 30% in the last six years. However, Minnesot Minnesotaa workers’ compensation med medical ical payments have increased 65% over that same time period. Minnesota workers’ compensation compensatio n medical payments were about $180 million in 1996 and in calendar year 2002 were up around $300 million. That is an increase of about twothirds. Anderson thinks thinks this shows itself in various various case reserves reserves as well. These are reserves reserves that the insurance company company must set on known cases. Case reserves on the books at the end of 1996 were a little less than $350 million. At the end of 2002, we are closing in on $600 million and are at about $590 million. Again, it is an increase of about two-thirds two-thirds and those are fairly good in indicators dicators of what might cause the carriers to look toward increasing rates, dropping people into the pool or eliminating schedule rating programs or other things like that. Anderson reported the frequency of injuries has leveled off but medical costs continue to be something that the insurance companies will be looking at as they set their prices for premiums. III. C. Workers’ Compensation Reinsurance Association Rates

Carl Cummins, president of the Workers’ Compensation Reinsuranc Reinsurancee Association (WCRA),  presented an overview overview of that organization. organization. He provided information information about the rate increases increases that were approved by their board, then were approved by the commissioner and will go into effect in 2004. Copies of the overheads overheads used during the presentation presentation were in the member’s folders. folders. The presentation consisted of a general overview of what the WCRA is, the 2004 rate increases and the Reinsurance Association of America’s (RAA) interest in the Minnesota workers’ compensation market. market. All workers’ compensation insurance companies companies admitted in Minnesota and

 

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all organizations that are self-insured for workers’ compensation are required by law to buy reinsurancee from the WCRA at one of three retention limits determined by statute. A low retention reinsuranc is $360,000, a high retention is $720,000 $720,000 and a super retention is $1,440 $1,440,000. ,000. Cummins repo reported rted that those retention limits are established according to a formula that is in statute so they tend to increase from year to year although although they are not changing in 2003 to 200 2004. 4. Basically, what the WCRA does is pay all the benefits forever if an injury is serious enough to have indemnity and medical benefits that exceed the chosen retention retention limit. If the WCRA has a very serious accident accident where multiple employees are involved, the liability could run to $5 million, $10 million, $15 million or $20 million and the WCRA would pay the greater percentage of all those benefits. Cummins explained explained why we have the WCRA in Minnesota. Minnesota. The WCRA was created a quarter of a century ago when the global commercial reinsurance markets were very hard and reinsurers were reluctant to write workers’ compensation in Minnesota because of the complexity of Minnesota’s workers’ workers’ compensation law. The legislature came up with with the WCRA in 1979 as an exclusive provider of reinsurance coverage in the State of Minnesota to ensure the availability of commerciall reinsurance and to help reduce workers’ compensation costs for Minnesota employers commercia and insurers. The Board of Directors is a mix of people. The commissioner of DLI appoints or approves most of the members of the Board of Directors, approves the WCRA rates, the surplus distributions and changes in the WCRA Plan of Operation. Since 1979, more than 17,000 claims have been filed with the WCRA on behalf of seriously injured workers. workers. More than $450 $450 million in claim claim dollars has has been paid. The WCRA has assets of more than $1 billion, and these assets are invested to meet projected claims payments for injuries that have already occurred. occurred. The dollars they collect in premiums premiums this year are intended, intended, along with the investment earnings, earnings, to pay all of the claims that might might occur this year. WCRA rates have been very stable over the last 10 years. This year, however, for 2004 2004,, the WCRA is raising its rates by about 30%. Some of the same factors factors that drive workers’ compensation compensation costs also affect the the WCRA rates. Rising medical costs and increases in life expectancy have driven up the WCRA rates for this year. In addition, last year the WCRA purchased a $50 million terrorism policy policy at a cost of about $2.5 million a year. Cummins noted that this increase should be put into context with commercial workers’ compensation reinsurance reinsurance rates. According to insurance industry industry publications, commercial commercial reinsurers have raised their rates in the last two years by 100% to 2000% while at the same time reducing the coverage they make available. Pollack commented commented the WCRA’s 30% rate increase is not acceptable. Cummins responded responded that WCRA members understand the reasons for the increase and recognize that the WCRA continues to be a stable, reliable, reasonably priced reinsurer for Minnesota. Cummins then reported that the RAA would like to either change the WCRA or abolish it and take over its customers in Minnesota. Minnesota. The RAA represents 29 commercial commercial reinsurers, reinsurers, half of which are foreign companies and none of which are based in Minnesota. Every four years the WCRA retains an independent outside actuary to take a look at their reserves. The actuary is to determine whether the WCRA has enough money to meet its long-term obligations and report its findings to the board of directors and the commissioner of Labor and

 

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Industry. This year they retained Milliman USA, which is a highly respected international international actuarial consulting firm. Milliman USA issued a report to the WCRA, which was filed with the Department of Commerce and the Commissioner of Labor and Industry. The report basically said that the WCRA’s reserves are more than than adequate. Therefore, Cum Cummins mins thinks that the RAA is simp simply ly wrong when it asserts that the WCRA does not have the ability to do what it is charged with doing. He concluded that the WCRA has been here for a quarter of a century, doing what the legislature intended them to do, which is to ensure the availability of workers’ compensation reinsurance in Minnesota, provide low cost reinsurance to protect Minnesota employers and Minnesota employees, and provide stability for the workers’ compensation system here in the state. Assistant Commissioner Beth Hargarten and Pollock asked Cummins for a clarification about terrorism and whether or not there is language in the terrorism policy that WCRA has purchased that requires a government declaration of a terrorist act. Cummins responded it does not. Hargarten asked if the requirement is part of the federal government insurance but not the insurance policy that WCRA purchased and Cummins Cummins said that was correct. correct. He said the definitions are not not given in a reinsurance policy and it does cover domestic terrorism, terrorism, which is not covered at all by the Terrorism Insurance Act. Representative Joe Mullery asked about the reserve and said that a few years ago someone Representative from the Department of Commerce approached him with concerns that their statistics showed the WCRA might not have enough reserves to pay its claims. Cummins responded that the WCRA was set up not to be a traditional traditional insurance insurance company. It was set up to be less less expensive. They are taxexempt, non-profit non-profit and do not have any marketing and sales expenses so it can operate more cheaply than a commercial insurance company. In addition, the WCRA is not governed by the investment restrictions that insurance insurance companies are operating under. Insurance companies companies have a statutory discount rate of 4% on their liabilities. liabilities. The WCRA has a 7% discount rate because it is free to invest invest over a much longer time frame than most insurance companies. The actual returns have been more than 10% per year over the last 25 years. If it were to be regulated like a regu regular lar insurance company, company, it would have to nearly double its reserves and double or triple its rates to Minnesota insurers and self-insurers. Therefore, with the repeated assurances assurances from the actuaries that have reviewed the WCRA’s reserves, Cummins is very comfortable that the WCRA has sufficient assets the way they are constructed right right now. Cummins Cummins agreed the WCRA does not have the kind of reserves reserves a traditional insurance insurance company has but noted they are not a traditional insurance company. Mullery asked about the payouts of surplus to the insurers and characterized characterized them as windfalls. He said the legislature tried tried to get the reimbursement reimbursement paid back to Minnesota businesses businesses and it was found by Federal Court Court that the statute would have to be chang changed. ed. Mullery asked if that was ever corrected so that the “windfalls” would go to Minnesota employers. Cummins respond responded ed that what has happened since then is, as a result of the Federal Court decisions in 1994 and 1997, the WCRA developed a formula as to what percentage of surplus payments go to employers and what  percentage goes goes to self-insured employers and insurance insurance companies. companies. As time goes by, an increasing  percentage of any any future surplus surplus distribution distributionss will go directly directly to employers. Cummins re reported ported that the system is in place now, the previous two commissioners commissioners have approved surplus distributions, and it seems to be working reasonably well. III. D. Exemption Discussion  Discussion 

Brener stated that the Amish request to be exempt from Minnesota’s workers’ compensation laws is still an unresolved issue and it would help DLI if the Workers’ Compensation Advisory Advisory

 

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Council (WCAC) came came to a decision about how it wants this request request to be treated. The litigation the department is involved in with the Amish is on hold until the WCAC decides what to do. Brener said Omar Syed from the Attorney General’s office would give an update and clarify where we are at this time. Assistant Commissioner Commissioner Hargarten and Syed researched how other states have handled handled this issue. Brener suggested the WC WCAC AC try to seek some resolution on this issue. Hargarten referred to her January 30, 2001, memo regarding religious exemptions in Wisconsin, Pennsylvania Pennsylvania and Kentucky. This issue arose in early 2000 after DLI’s DLI’s Investigative Services unit received a complaint, investigated Yoder Construction Construction and found it to be uninsured. Yoder and his employees are Old Order Amish, a religion that prohibits insurance and requires its followers to rely on their own community for aid. The DLI litigated the case before the OAH and Ramsey County District Court, then settled it pending an opportunity for the WCAC to address the issue. Before the WCAC are different options to structure an exemption. Syed presented information about religious exemption provisions from the workers compensation laws from the states of Wisconsin, Pennsylvania, Mississippi, Ohio and Kentucky. Each of those states exempts religious employers employers or employees whose religious beliefs preclude  participation in workers’ compensation. compensation. Kentucky and Mississippi Mississippi have the broadest broadest provisio provisions. ns. Mississippi’s provisions are broader because it does not require forms to be submitted to verify employees’ beliefs. To be exempt in Ohio, an employer submits an affidavit stating that he/she belongs to a religious sect and affidavits from the employees employees whom he/she intends to exempt. The employees and employer must belong to a sect that existed since December 31, 1950. In Ohio, the state determines whether such employers can provide reasonable wage loss and medical cost benefits for injured employees and whether the sect existed since 1950. Finally, Ohio may remove an exemption if an employee stops adhering adhering to the religious teachings. teachings. Pennsylvania only only differs in that the employee submits a written waiver of benefits otherwise payable under workers’ compensation. Wisconsin’s law is the most detailed. detailed. It allows employees employees whose religious beliefs beliefs preclude insurance to opt into an “alternative benefits system.” An employer must submit affidavits affidavits and written waivers that include information information similar to that required by other states and the sect’s representativee signs an agreement stating that the sect would provide a reasonable standard of living representativ to its members in place of workers’ workers’ compensation compensation benefits. The state also conducts a hearing if an exempt employee alleges that he or she did not receive the standard of living owed by the sect. After the hearing, the commissioner commissioner decides whether the benefits provided were reasonable. reasonable. If they were not , the employer must pay those benefits. Syed offered this information to the WCAC for comparison as it decides what to do. Thaden asked what happens in Wisconsin if the commissioner decides the benefits are not adequate. Syed responded that the em employer ployer is considered not to hav havee an adequate benefit system and is liable for that employee from that point forward. Thaden asked what fallback fallback exists if the employer goes out of business. business. Syed said Wisconsin’s law does not default financial responsibility to anyone, but the written agreement signed  by the sect provides provides a clue as to what m might ight happen.

 

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Paul Bailey referred referred to Hargarten’s January 30, 2001, 2001, memo. He said complaints fro from m competitorss are a concern and ask competitor asked ed if that remains remains true. Syed said he did not know. Hargarten reported she spoke to counterparts counterparts in Wisconsin a month month ago and nothing had changed changed.. She specifically asked them if if they had any challenges to their law and th they ey had not. Hargarten did not think Wisconsin has used its hearing process and Wisconsin does not anticipate using it because the affected sects do not believe in seeking help outside their communities. Thaden stated he has concerns that employers employers such as Yoder are compe competition. tition. He is also concerned that, even though they take care of their own, people do leave the religion and we need a fallback position if that happens. Mullery asked whether requiring all employees to be members of that sect would violate our Human Rights Act because of religion. Thaden said religion is a “protected class” for human rights purposes. David Olson asked whether there was a DLI staff recommendation. recommendation. Brener stated there is no  per se staff recommendation, recommendation, but there are two courses of action: DLI can continue the litigation process or the WCAC can draft a legislative recommendation on this issue. Based on Supreme Supreme Court decisions, decisions, it is unclear whether whether DLI wo would uld prevail in llitigation. itigation. If it does not prevail, the court will will dictate to us how to treat employers employers such as Yoder. Brener stated that he would prefer to solve the problem rather than have the court tell him what to do. That is ultimately the WCAC’s decision. Thaden is concerned the DLI will lose in court. H e mov ove ed tha thatt the the D L I dr aft language lilikke

Wisconsi Wi sconsin' n' s, r equir i ng an ap app plica li cati tion on by tthe he e em mploye loyerr doc ocum ume enting nting tha thatt the e em mplo ploye yerr and employ em ployee ee are are m mem embe berr s of the sa sam me o orr gani aniza zati tion on that ha hass a long long-s -sta tandi nding ng histor hi storyy and tthat hat a also lso conta contaii ns an agr agre eement w wii th the sec sect, t, a p prr ov ovii si sion on for a he heari ari ng, ng , a ffallb allbac ackk provisi provision, on, and a r equi equirr em ement ent that the d dep epar artm tment ent have the a abi bilility ty to r evo evokke the the e exxem empti ption. on. Discussion followed. Reed Pollack asked whether proposed legislation would impact other insurance coverages, since the Amish would need general liability coverage to build a barn and auto insurance to drive a truck. Pollack suggested the Amish Amish become self-insured self-insured for all of their losses, which wo would uld keep the WCAC from having to decide. Syed noted that DLI explored self-insurance as a settlement strategy, but Yoder Construction’s employees employees are opposed to self-insuring or reinsurin reinsuring g through the WCRA. They consider such steps to be insurance in a different form, which still violates their religion. Brener stated the WCAC’s jurisdiction is under Chapter 176 only, so any legislation would focus exclusively on workers' compensation. compensation. Wayne Ellefson noted his philosophical problem with requiring a group of people to  purchase insurance insurance they will never never use. He is also sensitive to the competition competition issue. Bailey commented that we have “beat this thing to death,” and are opening a big hole  because applying this this to workers’ compensation compensation wi will ll open the door to other areas. Brener said he

 

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understands that and that the the DLI can still take this to court. He does not, however, think the the outcome will be favorable, plus we will have no control over it. Brad Robinson asked which constitutional constitutional provisions support Yoder Yoder’s ’s argument. Syed said that the Minnesota and U. S. Constitutions have “free exercise of religion” clauses permitting  persons to freely freely exercise their religion. religion. The Minnesota Constitution Constitution contains contains a “Liberty of Conscience Clause” that affords greater protection to religion than the U.S. Constitution. Robinson asked what court court cases support the Amish position. position. Syed said Minnesota courts courts have not considered this precise issue on workers’ compensation, but there are cases in Yoder’s favor and DLI’s favor in both the Minnesota and federal courts. Ray Waldron asked what will will happen if the WCAC supports supports Thaden’s solution. Brener said DLI would then draft something and bring it back for discussion and a decision. David Olson agreed DLI should present a draft for review at the December 10, 2003, WCAC meeting. D avid avid Ols Olson on m mad ade e a motion otion ffor or the d dep epar artm tment ent to draft draft a pr prop oposal osal base based do on nT Thade haden’ n’ss  suggest  sugge stion ion.. B ai le leyy se seccond nde ed the moti on. All voted i n fav favor o off the the moti on.  Dan Dorman asked if other states had problems with persons who stepped through the “open door” and sought exemptions exemptions from other insurance. insurance. Brener said DLI would find find out. Susan Olson addressed Dorman’s concern, saying that if the WCAC does not propose legislation, a court decision will create an “open door.” The advantage of addressing someth something ing legislatively is that that you limit its scope. scope. Anything else must must be done legislatively. legislatively. The courts will not necessarily apply legislation to other areas and say they ought to be the same. III. E. Medical Costs Task Force Update  Update 

Brenner stated he appointed a Task Force in July to look at medical costs in the workers’ compensation system system and that there would be a series of six meet meetings. ings. They have now held four meetings. The Task Force focused focused on particular particular medical issues issues each day. They will have a wrap wrap up meeting to formulate outlines for a report the department will draft, hopefully, by the December 10, 2003, meeting with at least some fairly detailed information for the WCAC. All the information  presented at the meeting meeting is on the department’s department’s Web Web site at http://www.doli.state.mn.us/m oli.state.mn.us/medcost.html edcost.html.. The WCAC must now now determine determine how it wants to de deal al http://www.d with the medical costs issue legislatively and in the bill for the 2004 session. The legislature asked for the Task Force because medical costs are skyrocketing in Minnesota and all over. Brener noted that in 2003, for the first time in history, we are paying more in medical benefits than indemnity benefits and we need to put in some cost controls on the medical costs benefit side. This issue was addressed addressed fairly in an open open forum. He anticipates significant significant discussion by the WCAC at the next two meetings. Bailey asked what is driving the costs at 35% and Brener said the department could tell him what it is in workers’ compensation. compensation. There is an analysis with all that information information on the Web site at http://www.d http://www.doli.state.mn.us/m oli.state.mn.us/medcost.html . Ittime willwas clearly demonstrate demonstrate where herewent thoseinto costthese drivers drivers are and what is causing them. He edcost.html. noted a lot of spent and a lot ofw data meetings and onto the Web site and the arguments are pretty clear.

 

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III. F. Legislative Update

Brener stated the WCAC’s WCAC’s 2003 legislative bill nev never er passed. The departmen departmentt will have a list for next meeting to work work thorough the legislative legislative process as it has in the past. Many of the items on the list are not significant. significant. Brener said the primary primary base of discussion would be medical medical cost containment and possibly the Amish situation.

D avid avid Ol Olson son m mad ade e a moti oti on to ad adjj our ourned ned at 11: 11:10 10 a.m a.m.. Thad haden en se second conded ed the mot otii on. A ll voted in favor of the motion. Respectfully submitted,

Debbie Caswell Executive Secretary dc/s

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