9-3-2018; Busy Week in IL WC; SB 904 Amended by Gov Rauner--Will It Stick?; Governor Rauner Reappoints 11 Arbitrators; One Law Adds CE Req'ment for Opioid Prescribers and Medical Marijuana OK'd

Synopsis: Governor Rauner Amends/Nixes ISMIS Effort To Move IL WC Medical Bill Litigation to IL Circuit Courts.

Editor’s comment: Under the guise of “access to medical care” the Illinois State Medical Society or ISMIS is fighting to have some WC issues adjudicated at the IWCC and WC-related medical bills adjudicated in the Circuit Courts—what a mess. Please note if this legislation becomes law, the entire IL WC system is certain to go topsy-turvy—this will be a seminal change for risk managers, attorneys on both sides, doctors, hospitals, claims handlers. EVERYONE!!!

There do seem to be hard feelings about this legislation—I am unsure why. In my view, ISMIS and others should focus on getting faster, effective and more streamlined adjudication in the IL WC system we already have. Splitting the process is certain to be dysfunctional, as outlined below.

I received the following from Jay Dee Shattuck who is with the Illinois State Chamber. This is unedited by me but if you want the attachment mentioned, I will send it one at a time. I agree strongly with Jay and hope his effort to avoid double-trouble in handling medical bill payments in separate venues is successful.

A quick search of other states found no jurisdiction with a comp statute that authorizes or creates a comparable cause of action of allowing a medical provider to bring suit for payment of a comp claim in a court of primary jurisdiction against an employer/insurer.  

There is a provision in California law allowing a medical provider to seek a lien on an employer over disputed medical in a comp case, which serves to effectively create collateral litigation with the provider and employer as primary parties in interest. As of August 2016, California was the only state with such a provision. Hawaii had some legislation pending that has not been enacted.

A primary (and important) distinction between the provision of SB 904 and the California law is that the California lien claims are litigated and adjudicated before the California Workers’ Compensation Appeals Board and not in a court of general jurisdiction as proposed in SB 904. My understanding of the California process is more like allowing medical providers to seek something like a DJ (or declaratory judgment) from the Commission on the merits and validity of the claim and the necessity/extent/value of the services provided to the petitioner. Even with the substantially less burdensome approach than what’s provided in SB 904, the California lien process has been costly and has produced undesirable results, including a huge volume of lien claim litigation, the filing of a large volume of frivolous liens, and a cottage industry of pursuing claims on assigned rights on liens. 

Approximately 35% of the WCAB docket is comprised of these lien claims and employers/insurers spend about $200 million per year in loss adjustment alone. Another issue is that of assignment of rights on the liens. The 2016 brief describes the multitude of problems these liens have caused and an uptick in fraudulent practices being perpetrated by assignees of liens that the brief attributes to flaws in the system. Firms securitizing, packaging, and ultimately trolling on potential proceeds of medical comp claim lawsuits shouldn’t sit well with anyone. 

SB 904's new cause of action may also create a new industry of firms buying rights to medical, especially on questionable cases, and trolling for nuisance settlements or worse. This is effectively what the California lien system has caused, and these are just administrative adjudications, not claims in a court of general jurisdiction. 68 businesses comprising the top one percent of lien filers filed more than 273,000 liens totaling $2.5 billion in accounts receivable on adjudicated cases between 2013 and 2015. Two of the business owners are indicted and three others have pled guilty. (https://www.prnewswire.com/news-releases/600-million-in-workers-compensation-liens-filed-by-convicted-or-indicted-physicians-providers-300316091.html)

The proponents of this legislation mislead legislators by claiming their intent is that the change to allow pursuit of circuit action is only for "authorized" care. Two problems...first, the provision in SB 904 does not limit the action to such cases. If SB 904 were enacted, the law would read:

(3) In the case (i) of nonpayment to a provider within 30 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill, (ii) of nonpayment to a provider of a portion of such a bill, or (iii) where the provider has not been issued an explanation of benefits for a bill, the bill, or portion of the bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, shall incur interest at a rate of 1% per month payable by the employer to the provider. Any required interest payments shall be made by the employer or its insurer to the provider not later than 30 days after payment of the bill. 

(4) If the employer or its insurer fails to pay interest required pursuant to this subsection (d), the provider may bring an action in circuit court to enforce the provisions of this subsection (d) against the employer or its insurer responsible for insuring the employer's liability pursuant to item (3) of subsection (a) of Section 4. Interest under this subsection (d) is only payable to the provider. An employee is not responsible for the payment of interest under this Section. The right to interest under this subsection (d) shall not delay, diminish, restrict, or alter in any way the benefits to which the employee or his or her dependents are entitled under this Act.

Do you see anything that limits this section to a bill that is "authorized??? The Gov's AV (amendatory veto) limits the 1% per month interest to "undisputed" bills.

Second, as you know, it is not uncommon for care to be "authorized" but problems arise with the bill charges and a dispute occurs. Miscoding, unbundling, services that do meet the UR standards of care, etc. If medical providers have the power to pursue unpaid bills for all authorized care two results are likely: care authorization will not be offered until all services are agreed upon delaying care for injured workers; or, medical billing abuses will explode.

Another change of concern in SB 904 is the provision being added to Section 8.2a Electronic claims. The Department of Insurance is to establish rules that:

" Ensure that health care providers are responsible for supplying only those medical records pertaining to the provider's own claims that are minimally necessary under the federal Health Insurance Portability and Accountability Act of 1996."

My fear is that providers will severely limit what records are available to an employer to determine causation and compensability.

The IL Medical Society has refused to negotiate any of the SB 904 provisions. There are solutions to resolve what they say are their issues without potentially creating significant problems for employers.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

Synopsis: Governor Rauner Reappoints 11 Sitting Arbitrators.

Editor’s comment: Other than to again confirm we still have too many Arbitrators in this State, as IL WC claims continue to drop, I have no problem with the re-appointment of these great hearing officers.

1. Jessica Hegarty, an IL WC Arbitrator since 2014. She was with a very successful and connected personal injury law firm but demonstrates great perspective in pre-trials and trials.
2. Jeffrey Huebsch, first appointed as an IL WC Arbitrator in 2013. He previously was a defense lawyer who has become a moderate and fair hearing officer.
3. Nancy Lindsay, an IL WC Arbitrator since 2011. Nancy was an IL workers' compensation Commissioner from 2006 to 2011.
4. Christine Marie Ory, appointed as an IL WC Arbitrator in 2015. She was with an insurance carrier, Ralph Gabric’s office and her own shop before moving into the Commission spot.
5. Maureen Pulia, a strong hearing officer since 2003. Maureen is brutally fair and sharp in relation to legal and factual determinations.
6. Melinda Rowe-Sullivan, an IL WC Arbitrator since 2015. I have not appeared before her yet but look forward to a pretrial or trial when the time comes.
7. Douglas Steffenson, appointed by Governor Rauner in 2015. We feel Doug is reasonable, fair and professional.
8. Maria Bocanegra, who has been an IL WC Arbitrator since 2014. She is reasonable, fair and professional. She may be one of the more liberal, pro-union Arbitrators in this State.
9. Paul Cellini, an IL WC Arbitrator since 2015. Paul has settled into the position and does solid work.
10. Stephen Friedman, an IL WC Arbitrator since 2014. Arb. Friedman is a former competitor of mine and one of the most knowledgeable WC lawyers in this State.
11. Gerald Granada has worked as an Arbitrator since 2011. Gerry practiced law before the IWCC on both sides of the matrix and is a friendly and hard-working hearing officer.

Synopsis: New IL Law Strengthens Effort to Fight Opioids By Adding Continuing Education Requirement. Another Law Legalizes Medical Marijuana for WC Claimants In Lieu of Opioids.

Editor’s comment: The new law requires continuing education for prescribers on safe dispensing. It is hoped this is going to block over-prescription of these killer drugs in the IL Work Comp arena.

Last week, Gov. Bruce Rauner took another step to strengthen the State's effort to combat the opioid crisis by requiring medical professionals to take 3 hours of existing continuing education on how to safely prescribe opioid medications. The education requirement became law when he signed Senate Bill 2777 amending the Illinois Controlled Substance Act. "We're fighting this opioid crisis every day," Rauner said. "It's impacted too many families here in Illinois. We've given people who struggle with substance use more opportunities to get the help they need. We've started a 24-hour Helpline where they can get connected to treatment options. There's a standing order for using opioid reversing Naloxone. We've boosted reporting requirements to our Prescription Monitoring Program to halt ‘doctor-shopping.'"
 
"Now, we want to make sure our doctors see potential signs of abuse and are cautious when prescribing opioid medications to those who need them, cutting back on the potential for addiction," he continued.
 
The legislation was championed by the Illinois Department of Financial and Professional Regulation (IDFPR). Impacted professions that hold a separate controlled substance license include: Physicians, Podiatric Physicians, Advanced Practice Registered Nurses, Physician Assistants, Dentists, Clinical Psychologists, Optometrists, and Veterinarians.
  
An estimated 11 million Americans have misused opioids in the past year, approximately 1.9 million Americans are addicted to opioids, and 4 out of 5 heroin users started out on prescription opioids
 
On a related front, Illinois injured workers will qualify for medical marijuana in lieu of opioids. Republican Gov. Rauner also signed Senate Bill 336, which expands the state’s medical marijuana access. Known as the Alternatives to Opioids Act of 2018, it establishes a pilot program under which physicians may prescribe marijuana for patients who are taking opioids or who have a condition for which opioids could be prescribed. 

The bill did not exclude workers’ compensation patients from the program, as other states have done.

Please remember marijuana remains illegal on the federal level.