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DWC Moves On to Verifying Lien Declarations

Monday, July 10, 2017 | 2379 | 0 | 0 min read

California lien claimants who filed mandatory declarations before the July 1 deadline are not necessarily in the clear as the Division of Workers’ Compensation is reviewing whether the submitted documents comply with the requirements set by Senate Bill 1160.

But how the process will work is not clear. While the division said it already started reviewing declarations as of June 26, spokesman Peter Melton said he was unable to answer WorkCompCentral’s questions about the process on Thursday and Friday.

“I’ve been trying to connect with the DWC folks on this but they have not been available,” he said in an email Friday evening. “I am still waiting for a call back.”

He also said the division does not know how many liens were dismissed for missing the July 1 deadline but will release those numbers later this week.

Senate Bill 1160 requires that claimants submit with all liens filed since the start of the year a declaration stating under penalty of perjury that the dispute is not subject to independent bill review and independent medical review. Lien claimants must indicate they satisfy one of seven criteria to be allowed to file a lien, such as the treatment was provided through a medical provider network, the lien claimant is an agreed medical evaluator or qualified medical evaluator, or the employer refused to provide care.

Declarations were due by July 1 for the 1.1 million liens filed between the start of 2013 and the end of 2016. Failure to file a signed declaration as required by SB 1160 will result in liens being dismissed by operation of law, with no opportunity to refile.

The DWC said in a June 26 Newsline that it “is currently reviewing and evaluating filed declarations for compliance with the legislation, and will be holding hearings to determine whether the declarations are accurate and comply with the requirements of (Labor Code) Section 4903.05(c).”

But part of the declaration that the DWC is reviewing, and what will be subject to review at a hearing, is unknown.

DWC staff can presumably determine whether the declarations meet some of the statutory requirements from SB 1160. For example, the declaration is either signed or it isn’t. And the proof of service showing a copy of the declaration was delivered to the defense and the injured worker, if necessary, was either filed or it wasn’t.

But questions about whether the lien dispute is subject to independent medical review or independent bill review, and whether the claimant satisfies the criteria outlined in SB 1160, are more difficult to answer.

It’s not clear how a billing dispute could be eligible for IMR, as the process was created by Senate Bill 863 to resolve disputes in cases when utilization review determines a requested treatment is not medically necessary.

Whether a payment dispute is eligible for IBR is a more complicated question. This process was created by SB 863 to resolve payment disputes when the only issue is how much a service provider is owed. If reimbursement rates for a medical service are covered by the fee schedule, providers are required to use independent bill review rather than filing a lien.

The DWC has on its website a page dedicated to explaining when providers should file liens, request IBR or do both. However, the DWC notes on its website that sometimes providers should simultaneously file a lien and request independent bill review.

According to the DWC, the proper way to resolve billing disputes hinges on two questions:

  • Is the employer disputing compensability for the underlying claim?
  • Is the treatment service covered by a fee schedule or reimbursement contract?

Depending on the answer to those questions, the DWC recommends three possible courses of action:

  • If there is admitted liability for the injury and body part, and the treatment is described in the fee schedule, the medical provider should request IBR.
  • If there is admitted liability but the treatment is not covered by a fee schedule, the provider should file a lien, the division says.
  • If there is no admission of liability or it can’t be determined with certainty that the treatment is covered by a fee schedule, “the provider should file both a timely lien and IBR request, eliminating the risk of running afoul of the lien statute of limitations and protecting the provider until all these issues are decided.”

Likewise, it’s not clear how DWC staff would determine if the claimant actually satisfied one of the criteria to be eligible to file the lien.

Presumably the division could determine whether a provider was the qualified medical evaluator on a claim. But questions of whether the provider conducted a diligent search and determined the employer didn’t have an MPN, or whether the provider submitted documentation proving the employer refused care, are more difficult to answer.

Some of the compliance questions sound more suited to go before a judge, and the Workers’ Compensation Appeals Board has more lien conferences and trials on the calendar for the period of July 7-21 than were scheduled between June 26-July 10.

A WCAB calendar downloaded on June 26 shows 3,170 lien conferences and 402 lien trials set for the following two weeks. The calendar downloaded Friday shows 3,752 lien conferences and 566 trials scheduled for the next two weeks.

Without an answer from the DWC, it’s not clear whether the 18% increase in lien conferences and 41% increase in lien trials is related to more proceedings relating to the declarations, or just a normal variation in scheduled cases.

Comments

Rhonda Wofford Jul 10, 2017 06:51 AM

The author of this article poses an interesting question. Basically, does the DWC have the jurisdiction to make a "finding of fact." Presumably, there is a clerical oversight function to determine if a declaration is completed filled-out, or not, signed, or not, etc.. However, those clerical function should be within the purview of the Clerk of the WCAB. The Clerk of the WCAB falls under the oversight function of the WCJ's should a dispute arise. It is unclear what the DWC would offer as a remedy to handle a disputed "defective" declaration without a referral to the WCAB. I know that DWC is chomping at the bit to get rid of liens altogether. I know they think that the only good lien hearing, is the one that never occurs. However, there are due process considerations that require some judicial oversight.

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