Scott M. Tilley, Esq.
Non-IBR Med-Legal Litigation: Damned if you do, REALLY damned if you don't
Updated: Sep 9, 2022
From the Desk Of:
Scott M. Tilley, Esq.
Managing Attorney, San Bernardino
Workers' Compensation Law,
The State Bar of California,
Board of Legal Specialization
If you haven't felt the pain of non-IBR litigation, you are in for a treat. Imagine a world where someone performs a service without your consent or even necessarily a need to do it, and then bills you for the service. On top of that, imagine you tell this person you never wanted the service and you give them a list of all the reasons why you do not owe them anything. In response, you receive a bill for 10 times the original amount and an order from a judge to pay. Crazy, right? Well, welcome to the world of non-IBR med-legal litigation. In my experience, the most frequent situations involving non-IBR litigation deal with copy services. Keep in mind, this article deals with situations where Independent Bill Review (IBR) is not an option. Where the correct amount to pay is the only issue, IBR is the option and you do not need to deal with issue outlined below. Non-IBR litigation is for when we are not dealing with issues of the correct price to pay for services. These non-IBR situations seem to be happening more often than ever. We are going to use the copy service situation as the example in how to handle a non-IBR situation. However, the provider could be any med-legal service provider (for example, interpreters or diagnostic testing providers). The process is outlined as follows:
Marginally-Legal Photocopy (ML for short) issues a subpoena for records at the request of the applicant's attorney (more like 20 subpoenas, but who's counting).
The records are received, and the invoice is sent to the claims-adjuster for payment.
The adjuster then either issues payment in full or, if not paid in full, issues an Explanation of Review (EOR).
Keep in mind the EOR must be done if full payment is not issued.
The EOR must include certain statutory language regarding time limit to object to the EOR, and if a timely objection is not received no further payment is owed.
The EOR must list every objection the adjuster has to payment of the invoice (if you do not list, you lose).
If ML wants more money, they MUST issue an objection to the denial of payment within 90 days of the EOR (if they don't, no further payment is owed).
It is at this point in the timeline I most often get calls from adjusters asking for help. Some adjusters treat the objection from ML as a request for Second Bill Review. However, that is only the case for IBR situations. We are in "Non-IBR Land" and Second Bill Reviews do not live in "Non-IBR Land". In "Non-IBR Land", when a provider issues an objection to the EOR, the defendant must, within 60 days of the objection, do both the following:
File a Petition for Determination of Non-IBR Medical-Legal Dispute; AND
File a Declaration of Readiness to Proceed to an MSC on the non-IBR dispute issue.
Here comes the "REALLY damned if you don't" part. If the defendant, following a denial of payment EOR and an objection by a provider, fails to file the Non-IBR Petition and DOR, the defendant may be held liable for costs incurred by the provider in filing their own Non-IBR Petition, attorney fees to the provider incurred in filing the Petition and going to court, and sanctions for no less than $500. A $180 copy service bill can turn into a $180 copy service bills with penalty (10%) and interest (7% per annum) AND thousands of dollars in cost and fees from the provider's petition, along with sanctions from the Board. BE CAREFUL! It seems med-legal providers are looking for situations where they can file their own Petition for Non-IBR Determination as it allows them to object costs and fees, in addition to their charges plus penalty and interest. For defendants, it seems to me these situations come down to a cost benefit analysis versus a principled stance. Do you want to fight these in the hopes of dissuading bad behavior on behalf of the providers or do you want to pay the fee because it is cheaper than paying a defense attorney to fight the "good fight"? In the end, if you decide you are not paying the bill in full, make sure you follow all the procedures properly. If you don't, you'll may be paying significantly more than just the base bill. Our firm has a presentation on the non-IBR process which will give you a sample petition and all the Labor Code and Regulation cites you need. Let us know if you are interested.