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SB 1160 - Workers' Comp, UR & Lien Filing
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SB 863 

 

On Wednesday, August 31, 2016 in the closing hours of the biennial legislative session, SB 1160 was passed by the Senate with only three "no" votes and was signed by the Governor on September 30, 2016. The history of the bill’s development, introduction and passage appear farther down on this page (after bullet #4).

 

On Saturday, October 8, CSIMS recorded a webinar about SB 1160 entitled,

 “New Traps for Lien Claimants.”

It featured WCJ Pamela Foust (ret.), Mona Nemat, Esq, Carl Brakensiek and Steve Cattolica as they discussed the details of the bill.

Click here for details about how to obtain a copy for the webinar.

 

During this past two weeks, the latest developments include:

1) Discovery of language in the bill that requires the new declaration only of those liens for which a filing fee was paid and not liens for which an activation fee was paid.  While currently proposed WCAB regulations implementing SB 1160 support this position, it remains to be seen if clean-up legislation will be introduced to “fix” the situation. Click here to subscribe to CSIMS eBlasts for late breaking news.

 

2) The WCAB has proposed regulations to implement the bill.  Click here to access the WCAB’s announcement and the proposal.  The public hearing for these regulations will be held on January 4, 2017 in San Francisco.  Click here to access further details and the proposed language.

 

3) The DWC has introduced, but not widely distributed a revised and renamed, “Supplemental Lien Form and Section 4903.05 (c) Declaration.”  Click here to subscribe to CSIMS eBlasts to receive the most recent information on this important document.

 

4) The DWC has proposed emergency regulations to implement AB1244 liens held by providers who are convicted of fraud.  As emergency regulations, no public hearing will be held before they go into effect on January 1, 2017.  Instead, the DWC will have an additional 100 days after January 1, to gather input from the community and go through a formal public hearing process.  As result, the emergency regulations could be modified before becoming permanent.  Click here for details.

 

SHORT HISTORY OF THE BILL

Co-sponsored by the California Professional Firefighters and California Labor Federation, SB 1160 was first introduced as one way to improve the utilization review system.  As such, CSIMS supported that version of the bill.  Among other things it would:

  • Streamline the UR process during the first 30 days.
  • Require all U.R. programs to become accredited by a national agency to be named by the Administrative Director.
  • Increase penalties for non-compliance when carriers did not provide documentation in a timely manner.

However, as summer began, CSIMS and others in the workers' compensation community learned that the Department of Industrial Relations (DIR) was actively writing amendments to SB 1160 to add provisions that would not be as popular with the provider community.

 

On August 18, 2016, with only nine working days remaining, the bill was amended to do the following:

 

  • Restrict assignment of liens.
  •  Stay the collection of liens after a provider is accused of certain crimes until the accusation is settled.
  •  Depending on the terms of that settlement, prevent future collection efforts on any of the provider's liens.
  •  Require a new declaration under penalty of perjury by every lien holder as to the reason for the lien being filed.
  • Require the same declaration from all current lien holders in order for their liens to remain valid.  NOTE – current language in the bill requires a declaration only for those liens for which a lien filing fee was paid.  There is a possibility that after January 1, “clean up” legislation may be introduced to include all liens regardless of which fee was paid.
  •  Any current lien holder who must file a declaration has until July 1, 2017 to file their declaration along with substantiating documentation or their liens will be extinguished by operation of law. 

Many of these new provisions were discussed between the DIR, CSIMS and other stakeholders during the few weeks prior to being amended into SB 1160.  During those discussions, CSIMS and others pointed out a number of issues that might arise if care was not taken in the drafting of the amendments.  When the amendments were finally put into print, those issues were not addressed.

 

During the period between August 18 and August 26th  2016, when the bill passed out of the Assembly with those amendments, and August 29 when yet more amendments were included and August 31 when the bill was eventually passed in the Senate, CSIMS combed through data from the DWC's own EAMS system to quantify what we predict will be a severe and lasting loss of access to health care for employees whose claims are denied.

 

The analysis was declared statistically valid by a professor from the Pepperdine, Graziadio School of Business and Management and presented to both the Assembly and Senate policy committees.  The effect of the analysis was to cause a number of verbal assurances and concessions from the author as well as a letter from Senator Mendoza to the Senate Secretary for inclusion into the Legislative Journal. The letter memorializes some, but not all, of those concessions.  A link to the letter and many other resources appears below.

 

CSIMS' verbal and written testimony addressed what appears to be a concerted effort by the DIR to extinguish as many existing liens as possible. Despite repeated assurances to the contrary, the DIR anticipates that lien holders will miss the June 30, 2017 deadline to file their declarations.  While Senator Mendoza and the sponsors steadfastly stated that it is not the legislature's intent to "take" liens away by operation of law, the DIR did not see fit to take advantage of the opportunity to better tailor the conditions found within Subsection (C), leaving it to the Administrative Director to fix any problems with future regulations.

 

Is SB 1160 actually "SB 863 Lite?"  Only time will tell.  However, there are many similarities to SB 863 enacted in 2012.  Among the similarities are the last minute nature of its hearing and passage, legislators' lack of true understanding of its impact and its likely negative effect on access to care among injured workers with denied claims.

 

In the meantime, visit the Legislative Tool Box on the CSIMS website to learn more about SB 1160, read commentary and analysis on the bill, Senator Mendoza's letter, listen or watch the Assembly and Senate proceedings and become familiar with CSIMS' efforts to protect your practice. 

 


 

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Contents of this web site are property of CSIMS, copyright 2016. Except as specifically granted to eligible CSIMS Members, all information on this web site, in particular, the contents of the "CSIMS Tool Boxes," may not be reproduced, distributed or used by any means or for any purpose without the express written permission of CSIMS. Certain reference materials herein are copyrighted by the authors and are used with permission.
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