On Balance Billing and Fraud Busting

Thursday, August 6, 2009 | 0

By Eugene F. Keefe


Synopsis: In no particular order, we want to give you more solid thoughts on a number of legal issues.
 
Editor's comment: First, we were asked if balance billing is "legal" in  Illinois and what to do about the practice, when and if it appears. Balance billing is the practice of having the medical provider accept a lower amount for a WC medical service from the insurance provider and then continue to dun the patient/injured worker for the balance.
 
We had a concerned client tell us a claimant attorney and unnamed arbitrator both advised during a pretrial that they would not take steps to stop balance billing. The arbitrator indicated he/she was going to award the bills despite the fact the health care giver already accepted a lower payment.
 
In our view, some claimant attorneys and a few arbitrators are always going to tell you to do what is easiest for them, regardless of the cost to the insurance carrier or self-insured employer. Claimant attorneys in Illinois sometimes "side" with the chiropractors and those who overtreat because some of them send attorneys new clients and help build attorneys' claims. If an insurance carrier will grudgingly pay something, it is easier for the claimant lawyer than getting 500 phone calls from a whining client about a chiropractor or overtreater's bills.
 
The bigger picture is balance billing is a violation of  Illinois law. Effective July 20, 2005, "balance billing" is no longer legal. (Sec. 8.2e). Please note while the practice is proscribed, there is no specific penalty for continuing to balance bill a patient or the employer.
 
When we have authority from a client, what we are doing when balance bills are received is to write the medical care provider and confirm we will sue them to force them to stop sending collection notices or taking collection action against the worker. The letters typically work —we haven't actually sued anyone yet. If we had to sue, we are not sure what a circuit court judge would do with such a lawsuit, but we are confident they would enforce the law as written. And actions to block credit collection are much more common than they used to be.
 
Second, we recently again reported the ruling in Carter v. Tennant Co. that allows an  Illinois employer to ask a prospective employee if they:
 
         Ever had any occupational injuries, accidents or illnesses.
         Lost time from work for a work-related injury or illness.
         Saw a doctor for any work-related injury or illness.
 
We had a number of claimant attorneys tell us the ruling is wrong and doesn't follow ADA . We replied to tell all of them the questions are quoted out of a federal appellate court ruling. The members of the court state current law. The ruling in Carter v. Tennant Co. is limited to the court's review of  Illinois law only. It may be illustrative on what they may rule in considering the laws of other states but we would suggest any of our readers check with us or your own counsel before you seek to apply the ruling to the law of other states.
 
Please understand we do NOT recommend our readers fire or refuse to hire anyone who answers "yes" to the three permissible questions outlined in Carter v. Tennant Co. We do not recommend you have a blanket rule not to hire anyone who ever had a prior work injury. That strategy will eventually lead to litigation you don't want and may have trouble defending.
 
It is our legal opinion you can always ask all three questions. If an employee lied and you have a clear and open policy to fire someone for lying on your employment applications, you should be able to fire them for lying but not for answering in the affirmative to the questions or for having a prior work injury or being treated for one.
 
If they were to tell the truth, you have to carefully use the information you receive in response to the questions. If a prospective employee answers yes to any of the three questions, you should investigate further. You have to ask more questions and seek out nature of the injury or illness, the course of care and the status of recovery from the accident, injury or illness.
 
If the prospective employee had a hang-nail at work, you might still want to complete the process of hiring them for a truck-driving job. If they had seven-level spinal fusion surgery with implanted rodding, you might not want to hire them as a truck driver if the job requires heavy lifting. You might want to consider them for sedentary job, if such work were available. All of it requires further inquiry and accommodation when and where possible. If you have specific questions about such hiring practices, send me an e-mail.
 
Third, we recently reviewed an appellate court ruling in a matter entitled Grabs, et. als. v. Safeway Inc. and Dominick's Finer Foods LLC, (No. 1-08-3007 June 17, 2009). In their ruling, the Illinois Appellate Court addressed a certified question on an interlocutory appeal on this narrow issue of alleged retaliatory discharge. Plaintiffs filed a joint complaint alleging defendant terminated them in retaliation for filing workers' compensation claims. Defendant responded to claim plaintiffs had been terminated for violating a neutral attendance policy when they missed three consecutive days of work subsequent to being advised to return to work pursuant the opinions given by defendant's IME. A battle over the IME and ability of the employer to rely on the IME to terminate the workers went back and forth.
 
The Grabs ruling went over a much more cogent precedent that remains good law for all Illinois HR, safety and benefits folks to remember. The name of that ruling is Hartlein v. Illinois Power. If you need that cite, please advise. Hartlein v. Illinois Power held you can safely terminate injured workers who are on TTD if you have a valid, non-pretextual basis to do so. The best valid reason to terminate an injured worker is demonstrating you have a bona fide need to fill the position.
 
The best example of this principle is the school bus company that has six buses and 30 kids in each school bus. One driver is injured at work. Through no fault of their own, he or she will be off work for at least 90 days. You still need to get the kids to school on the bus. Hartlein v. Illinois Power ruled you do not have to hire a temporary bus driver and then fire that driver when and if the other driver becomes healthy and can return to full work.
 
The challenge created by the Hartlein ruling is to be sure you can document the termination is not due solely to the injury or the claim for workers' comp benefits. You are much better off if you can demonstrate you did not just fire one worker— if there is a group being laid off or let go, it clearly appears to be outwardly "fairer" if an injured worker is also laid off at the same time.
 
Please also remember it is much harder to manage an  Illinois workers' compensation claim if the injured worker is let go while they are off work. They are much more likely to try for the two highest benefits in this state — wage loss differential or total and permanent disability benefits. Also if you let an injured employee go, you cannot bring them back to lower paying light work on a transitional basis.
 
Finally, we were asked by one of our sharpest clients about Social Networking Policies. They are asking for any of our readers willing to forward sample policies to send them along. The client is specifically worried about things like:
 

• Disparaging the company or employees/clients related to the company's operations;
• Seeking access to social networks during working hours on company equipment;
• Unauthorized posting of proprietary corporate information;
• Racy pix wearing company uniforms or readily identifiable corporate locations and then posting on a site;
• Lies about company's finances, viability or other similar issues.

1. Over the last five years, there were significant declines in total lost-time claims frequency for all U.S. industries, geographic regions, and employer sizes
2. The number and frequency of permanent total claims have increased significantly over the last four years. All major causes of injury contributed to the rise
3. The rise in permanent total claims appears to be driven primarily by workers age 50 or under
4. While claim frequency generally decreases as risk size increases, single-state risks in some classes have higher claim frequency at the higher payroll sizes than at lower payroll sizes