I am not sure I have all the details nor are they apparent from this recent "Motion Day" Order, but it is pretty clear to me from the ruling in Frederick Tulowitzki v. Property Advisory Services Corp., IAB # 1334523 (7/1/10) (Order) that we are now living on perpetual red alert. And since there is a statute that lays out the rules and the deadlines, perhaps that is as it should be. All I can say is you better make sure you have one heck of a diary system. Or the world's greatest paralegal (and no, mine is not up for grabs).
So what am I talking about?
Claimant files a DACD Petition for a prospective cervical spine surgery on March 25, 2010. The surgeon, Dr. Yalamanchili is a certified provider under the Health Care Practice Guidelines so Utilization Review jurisdiction is triggered. Pre-authorization is sought for a multi-level discectomy and spinal fusion, which is scheduled for May 27, 2010. The Employer's counter is a DME notice issued two days prior to surgery, followed by a Utilization Review referral a few days later, but nearly three months after the surgical DACD was filed. At this juncture the Employer also argues that Industrial Accident Board jurisdiction is divested on the DACD petition pending the UR outcome.
Sounds pretty benign so far?
Not really. These facts would make a great Bar Exam question for comp lawyers, in the opinion of this humble blogger. And it would seem that the Board members agreed. Problem #1 is that since Dr. Yalamanchili is a certified provider, whose care falls under the Health Care Payment system, the Employer had an obligation to authorize the treatment or deny within 30 days of receipt. Deadline #1 appears missed. Problem #2 is that if the Employer chose to deny the surgery, the new statute requires a Utilization Review referral within 15 days of written denial. Deadline #2 missed.
From bad to worse?
According to the Board, "to the extent that the Employer argues that the surgery is subject to the Practice Guidelines and that the Claimant's petition should be dismissed pending receipt of the UR determination, then by same rationale, the employer is subject to a fine, pursuant to 19 Del. Code Section 2322F(g)." Ouch!...and here we are with the return of the Section 2322F fine.
I knew we hadn't seen the last of those critters, the fines, that is, irrespective of what my friend, esteemed colleague from "slower lower" Henry Davis, Esq. might have to say about the fines in a post from the (much) earlier days of this blog. I don't remember much about that post except that I think the point of Henry's colorful comments was that the fine statute might prove to have no teeth....and that he used the word "draconian"......... I respectfully dissent on this one point. But I would love to hear from Henry......he is insightful, and his turn of a phrase is far more colorful than mine. A fine statute with no teeth...now there's something to chew on.
Well, my friends, go find an umbrella, there is reportedly bad weather ahead. And I am not just talking about this statute.....:>)
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Apparently I have been remiss in my self-imposed role as Plato's gadfly in this community, sorry for that. The statute presumed alacrity in the actions of the carrier in response to notice of proposed treatment as well as similar speed in paying uncontested bills. Perhaps the thing which most caused me to see the fine section as a paper tiger was my lack of conviction that the Board was going to undertake its role in the act as the policeman of the carriers and certified providers, rather than continuing to just be the judge of disputes. Thus far I am still not sanguine about the likelihood that the Board will perform that function as the only fines imposed appear to be when the Board has been requested by a party to pursue the role the statute sets forth for the Board to fill. In fact, I think the issue of the fine here was raised as a threat to suggest carriers adhere to the statute more closely so the Board does not have to fulfill that role.
That, frankly, is neither here nor there when discussing what is actually important about this case. The important thing is that the Board is recognizing the speed at which carriers are intended to react to proposed treatment and/or billed treatment. This recognition and the scantily veiled threat of the fine taken together should be as I said in previous posts, a big red warning flag accompanied by klaxons. 2322F(e) and 2362(b) notices in writing to claimants being enforced are probably right around the corner. Findings of waiving UR because of non-conformity to the expected time frames is less likely as that would dump the dispute right back into the lap of the Board when there is a failure, but eventually they are not going to be able to avoid such findings after a few appeals.
Because the system is not walking bill paying disputes out of the realm of claimant action as it was intended to, claimants only choice will eventually be to pursue Board sanctions for failing to follow the system set up by the fee schedule, statute and billing practices. Unfortunately that will eventually fall on not only carriers, but providers as well, possibly causing an exodus from certified status.