Tuesday, November 19, 2013

Simple Math

Judge Wu's preliminary injunction in Angelotti Chiropractic v. Baker, limited as it may be, has emboldened other medical vendors in the California workers' compensation system to file a challenge to the lien fees, though with some additional allegations such as also challenging the lien-only statute of limitations.

Attorney Matthew D. Rifat of San Diego on Monday filed a federal court complaint on behalf of Dr. Robin Chorn in Los Angeles asserting that SB 863's lien provisions are unconstitutional. Rifat had filed a similar complaint last Thursday in the federal court for Southern California in San Diego on behalf of chiropractor Dirk Kancilia.

Both lawsuits seek to overturn the statute of limitations to file a lien, the $150 filing fee and a provision of the bill that prohibits providers from selling their uncollected debts to third parties.

The plaintiffs in Angelotti only challenged the constitutionality of the lien-activation fee, and Wu's injunction only applies to liens filed prior to Jan. 1, 2013.

Rifat told WorkCompCentral on Monday that he is also working on complaints he will file in state courts alleging that the lien language violates the California Constitution.

Rifat's complaints allege the filing and activation fees violate the 5th Amendment’s taking clause and the due-process clauses in the 5th and 14th amendments, and because the fees are only charged to one group of providers (as Judge Wu noted in the Angelotti case, the fees do apply to insurance companies, health maintenance organizations and labor union benefit plans), they also violate the equal-protection clause of the 14th amendment.

Rifat thinks that Judge Wu got his ruling incorrect on the takings clause and due process arguments because medical vendors who provide authorized treatment under contract (even in medical provider networks) sometimes must still file liens to protect their reimbursement expectations.

Rifat says such reimbursement expectations initiated by authorization to provide treatment represents vested property rights subject to the takings clause and requiring due process prior to summary dismissal.

Jeremy Merz, a lobbyist for the California Chamber of Commerce, said, “We will diligently defend against all efforts to dilute, undercut or roll back SB 863, including legal attacks.”

But the California Chamber of Commerce isn't paying for the defense of these lawsuits (they did file an amicus brief in the Angelotti suit); we are, the taxpayers, because the suit is against the state and state officials, not the Chamber. 

So it's easy for Merz to posture, but this doesn't accomplish anything of value to the system or to employers or injured workers in the state.

The lien filing fee issue has already cost employers plenty. We just don't know how much yet, but much like sequestration and the federal budget debacle, political posturing comes at the expense of the people who ultimately have to pay for everything that goes through government.

That's you and me.

Get back to the bargaining table! Invite everyone who's affected. Yep, this will make negotiations more difficult because there will be more issues. But you might find a path to a workable system as opposed to the slugfest that SB 863 has encouraged.

The more time that is allowed to pass through the SB 863 lien fight the more it is going to cost California employers and injured workers. The math is pretty simple.

But sadly I don't see this happening. The interests are deeply entrenched. The issues are inflammatory and emotions volatile.

I hate to say it, but the divisiveness that is the basis of the lien debate won't allow for compromise without significant collateral damage first.

We'll see you at the next rate hearing...

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