Department of Industrial Relations Drafting Regulations to Implement SB1160

Last year, Senate Bill 1160 (SB1160) was enacted, imposing new filing requirements on medical treatment lien claimants.

The Department of Industrial Relations (DIR) has issued a draft of proposed amendments to Board Rule 10770, as well as a new section 10770.7, both of which incorporate these new requirements. The DIR had initially set the public comment period to end on January 4, 2017. However it extended the period for public comment to January 31, 2017.

The DIR’s website contains the notice of proposed rulemaking, initial statement of reasons, and the text of the proposed regulations. The proposed amendment to Board Rule 10770 eliminates the provision barring the filing of the statement or itemized voucher, which usually accompanies the lien when it is served on the parties. Pursuant to the Labor Code Section 4903.05, liens filed after January 1, 2017 must be accompanied by the original bills.

The new EAMS lien form required for all liens filed after January 1, 2017 has also been issued. The form contains the new, additional declaration mandated by Labor Code Section 4903.05(c) for all non-exempt liens. Effective January 1, 2017, all liens of providers who are subject to the lien filing fee must be accompanied by a declaration stating, under penalty of perjury, that the dispute is not subject to an independent bill review (IBR) and independent medical review (IMR), and that the lien claimant qualifies under one of the following conditions:

(A) Is the employee’s treating physician providing care through a medical provider network.

(B) Is the agreed medical evaluator or qualified medical evaluator.

(C) Has provided treatment authorized by the employer or claims administrator under Section 4610.

(D) Has made a diligent search and determined that the employer does not have a medical provider network in place.

(E) Has documentation that medical treatment has been neglected or unreasonably refused to the employee as provided by Section 4600.

(F) Can show that the expense was incurred for an emergency medical condition, as defined by subdivision (b) of Section 1317.1 of the Health and Safety Code.

(G) Is a certified interpreter rendering services during a medical-legal examination, a copy service providing medical-legal services, or has an expense allowed as a lien under rules adopted by the administrative director.

The new Supplemental Lien Form and Section 4903.05(c) Declaration for non-exempt liens filed prior to January 1, 2017 has also been made available in EAMS. This supplemental declaration, which mirrors the affidavit described above for all post-January 1, 2017 non-exempt lien claims, is required for all pre-January 1, 2017 liens for which a filing fee had been paid.  This supplemental declaration must be filed before July 1, 2017. Failure to file this documentation will result in dismissal of the lien by operation of law. Proposed Rule 10770.7 covers this requirement.

Boehm & Associates will keep you updated with regards to regulations and legislation affecting the rights of medical treatment lien claimants.