Administrative Agencies: Rules: Rule Making

Montana Schools Group Workers' Compensation Risk Retention Program v. Department of Labor and Industry/Employment Relations Division [6/9/98] 1998 MTWCC 48 Following parties' request that WCC reconsider its orders in Montana Schools Group Workers' Compensation Risk Retention Program v. Department of Labor and Industry/Employment Relations Division, 1998 MTWCC 31, WCC concludes it should not have ordered an evidentiary hearing on direct costs, but should once again remand the matter to the DOL for rulemaking. The Court's view on the validity of the DOL position on direct costs does not change and is reiterated. While the Court agrees with the DOL that the rulemaking process does not require the DOL to hold a contested case hearing, make findings of fact, and provide a detailed explanation for its rules, the nature of rulemaking under section 39-71-201, MCA (1991) requires the Department to establish some sort of factual basis for its determination as to what costs do and do not constitute direct costs. Otherwise, the Department would be free to disregard and nullify statutory criteria it is required to implement.

MSG v. DOL [4/21/98] 1998 MTWCC 31 In this case involving insurer's challenge of assessment levied against it by Department of Labor, WCC held DOL failed to consider directive of section 39-71-201, MCA (1991), to consider allocation of direct costs when making rules. The rules were therefore invalid.

Montana Schools Group Workers Compensation Risk Retention Program v. Dep't of Labor and Industry Employment Relations Division [06/16/95] 1995 MTWCC 48 The method used by the Department of Labor and Industry to assess fees against insurers and self-insurers to fund government costs of administering the Workers’ Compensation and Occupational Disease Acts amounts to a de facto agency rule. Where section 39-71-201, MCA (1991) has left significant regulatory details to agency discretion and that discretion could be exercised in different manners, each impacting segments of the public differently, the assessment methodology must be adopted by rule following statutory rulemaking requirements (Montana Administrative Procedures Act). Once a rule is adopted, school district self-insurance association is entitled to have its 1992 assessment recomputed and to receive either a refund or credit if appropriate.