Tuesday, June 19, 2012

Response to Use a Bigger Hammer

Stephen Schneider, president of MedLegal Photocopy, replied to this morning's post, "If it Doesn't Fit, Use a Bigger Hammer", but it was too long for the comment section. Stephen granted permission to post this as a guest editorial in response:

Another important component of "the problem" is determining how many of the lien filings, both electronic and OCR, are truly unique. Part of the EAMS rules is that all liens be filed as an "original" lien. For whatever reason, EAMS Filers were told to file Amended liens as Original. So, even if the annual lien filings are 500k, nobody knows what percentage of those are unique filings.  

And maybe an even more important component of this "problem" is knowing how many of the liens filed (or backlogged) are already resolved. Lien Claimants file their lien to get notice of hearings, service of documents, and basically put their place-marker in the case as an interested party.  The vast majority of those liens are paid and settled without a lien hearing. There has been no pressure by the DWC on lien claimants to file a Notice withdrawing settled liens. In fact, we could expect such notices to be stockpiled along with the un-filed liens, because these would be a burden on the DWC staff to scan into EAMS. This wasn't a problem until the Administration started equating "liens filed" with "lien issues that need to be heard". In other words, the Administration is assuming that because 500k liens get filed each year, that same number of lien issues are marching their way towards a eventual DOR. I've yet to see a figure for the percentage of liens filed that turn into DORs, but my guess would be a very low percentage. 

So, we aren't sure what the flow of incoming lien filings are - because we haven't been scanning all of them into the EAMS system. We aren't sure how many haven't been filed because there is a discrepancy on the number of boxes left to be scanned, and how many liens on average are in those boxes. And once we get an accurate count of the un-scanned liens and come to a real figure of the inflow of liens for filing, we STILL don't know how many of these are actually unique liens, or how many self-resolve without using any of the resources of the DWC District Offices. 

I agree that it's difficult to tell at this point what problem the Administration is trying to solve. As you pointed out, if it's just the paper they are having trouble scanning, there are much less controversial and disruptive ways of solving that problem. If the Administration is trying to reduce the number of lien DORs and hearings, then the recent changes seem completely counterproductive. If the Administration is trying to save money for employers then - as you pointed out - we need to see more reliable data, and the dots connected for exactly how much might be saved.  

The blame for the "lien problem" in this state is usually placed squarely on the shoulders of the lien claimants. However, it should be obvious to everybody that the "problem", whatever that is, is caused by all parties involved. Certainly, there are "bad guys" among the lien claimants, but when the billing for a provider's services goes unpaid to a point where the Lien Claimant is now a party to the case, we have to consider the motives and action of the defendant as part of the "problem", and not focus entirely on the Lien Claimant. We have to consider the Judge's lack of attention to the lien when the case in chief was resolved.  We have to consider the defense attorney's motives for pushing that lien issue and even the applicant attorney's motives and actions for incurring the services in the first place. It's a complicated "problem", to be sure, but focussing all the friction on the lien and lien claimant's ability to file and collect unencumbered by filing fees, statute of limitations, and now DOR time limits should be considered carefully. These types of changes will only encourage the defendant and defense attorneys to delay and deny payment for otherwise valid liens in the hopes that the Lien Claimant screws up on one of these friction points. Such rules may make it easier for certain lien claims to be denied, but it also may cause a much larger number of liens to get caught in the "filter". It goes back to knowing how many liens resolve themselves now, without using DWC resources. If 90% of all liens resolve themselves now, but we introduce Regulations that encourage defendants to delay payment (in the hopes of tripping up the lien claimant on a technicality), we could in fact cause a much bigger problem than we started out with. 

To truly solve "the problem", I think the Administration should carefully collect reliable data, talk to all parties involved, define the problem(s), and THEN consider solutions. I don't feel like that is happening right now. 

Thanks for the editorial Dave.

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