Level Playing Field in DE? New Directive Bans Defense Counsel From UR Distribution List
LexisNexis Workers' Compensation Law Community
By Cassandra Roberts, Young Conaway Stargatt & Taylor
Trust the DE Department of Labor to be creative. Amidst the ongoing complaints of the work comp claimant's bar that they do not receive a copy of the Utilization Review decision and there have been instances where their clients have blown the appeal deadline of 45 days pursuant to 19 Del. Code 1341, Section 5.5.1, the Department of Labor has issued a directive. I suspect the directive was not prompted as a reply to any particular inequity experienced by claimants, however. But you have to admit, there is a certain irony in the outcome given that many of us thought, rather naively, that the day would come when both the defense and the claimant bar would "enjoy" timely receipt of a copy of the UR decision. Just call me Pollyanna......:>)
This morning I arrived back from the holiday to find the attached directive from the DOL. Relying on language in 19 Del. Code Section 1341, Section 5.5.1 that provides that a copy of the UR determination will be sent to "the claimant, the health care provider in question, and the employer or its insurance carrier ", it has now been decided that employers and carriers cannot designate attorneys to act as their agents in this process for purposes of accepting service of the UR decision, even if defense counsel prepare the UR submission package. What's with that?
We all know that there are folks who are none too happy with how this UR has turned out. And have we all not heard the following commentary from the Peanut gallery?
• "There are too many appeals being taken."
• "Utilization Review was intended to be a lawyer-less process."
• "UR is being used to game the system and delay med pay...."
The opinion of this humble blogger for what little it's worth?
The number of appeals? I think it would have been great if UR was final and binding. The right of appeal is what it is. My sense, and it is not based on any actual statistics, is that there is a relative parity among the number of carrier and claimant appeals from UR. My insurance clients are very judicious in the cases they refer for UR scrutiny and as such, we have enjoyed success in the UR process for the most part; of those winning decisions, 99% of them have been appealed by the claimant. Interestingly, the few we have lost, we have not yet appealed one. That is just my experience....guess I have been lucky. That said, give someone another bite of the apple and you don't expect they will take it-- that's pretty naïve.
Bullet points two and three above merge together for my money. Here's the thing: you take what was previously a one-step process and convert it to a two-tier process and you don't think that will create delay? Add to that the fact that we have these Practice Guidelines and even the providers do not agree on what constitutes compliance, the fact that there is no consistency in the quality or format of the UR decisions, and when there is an appeal from a UR determination, the standard of medical treatment compensability changes from "Guidelines compliance" to "reasonable and necessary" --you know, that former standard of "subjective and nebulous". Does anyone really think the carriers would not want an attorney to walk them through this minefield of ambiguity? And does anyone really think this is a more stream-lined, less complicated process of adjudicating medical bills?
I have a talent for saying what everyone else only thinks. It's a skill I continue to hone. There have been a few claimant appeals saved because they blew the appeal deadline. There is a nasty rumor circulating that by blocking defense counsel from acting as the carrier's agent for purposes of accepting a UR rulings, a few more appeals may never be filed with the IAB. I guess that's one way to cut down on litigation.
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