Medical Liens: Are you paying for unprofessional conduct?
Medical treatment expense and liens are an unpleasant but necessary aspect of Worker’s Compensation claim handling, but there are steps you can take at the outset to simplify resolution of outstanding liens and treatment charges.
The first task is to find out if the providers that are billing for services had the requisite licenses and permits when services were rendered. Although it’s hard to believe any contemporary provider would not be in compliance with the licensure and permit requirements of the Business and Professions Code, a case from the Fresno Worker’s Compensation Appeals Board District Office provides a recent example, Garcia v. SCIF (April 2009) ADJ 2268134. N & S Neurology, owned and operated by a Fresno neurologist held more than $2.2 million in liens against the State Compensation Insurance Fund for treatment rendered from February 10, 1999 through April 15, 2006. The trial court disallowed the liens in their entirety because N & S Neurology had never been issued a Fictitious Name Permit by the Medical Board of California.
Business and Professions Code § 2285 provides that “use of any fictitious, false, or assumed name, or any name other than his or her own by a licensee either alone, in conjunction with a partnership or group, or as the name of a professional corporation, in any public communication, advertisement, sign, or announcement of his or her practice without a fictitious-name permit obtained pursuant to Section 2415 constitutes unprofessional conduct.” “N & S Neurology” was displayed at the top of correspondence and reports issued by the neurologist, and “N & S Neurology” was used on the billing statements.
Business and Professions Code § 2415, in turn, provides that any physician who wants to practice medicine under any fictitious name other than his or her own cannot do so until the California Medical Board issues a Fictitious Name Permit. Subsection (c) requires that each permit be accompanied by a Notice that “shall be displayed in a location readily visible to patients and staff at each place of business identified in the permit.” This means that physicians who operate satellite offices must inform the Medical Board of the location of all satellite offices where the licensee see and treat patients. This requirement is frequently overlooked by licensees who otherwise hold valid Fictitious Name Permits when they open satellite offices without informing the Medical Board and update their Fictitious Name Permit
Title 16 California Code of Regulations § 1350.2 (c) expressly clears up any ambiguity regarding the reach of Business and Professions Code §2285 by providing that “no licensed person shall render professional services using a fictitious, false or assumed name or any name other than his or her own unless and until a Fictitious Name Permit has been issued.” (Emphasis added).
N&S Neurology argued in Garcia that the treating doctor was duly licensed, and lack of a Fictitious Name Permit was a mere technicality that should not be used to disallow payment for services provided to injured workers. The trial judge disagreed, noting the Legislature had clearly and unconditionally mandated that no medical services be rendered until the California Medical Board issued a Fictitious Name Permit.
The trial judge pointed to a decision directly on point from the Second District Court of Appeal, Anil K. Gandhi v. WCAB (Matus) 2065 CCC 719, where the Court disallowed Dr. Gandhi’s liens even though he was duly licensed and held a Fictitious Business Name permit from the County of Los Angeles. In deciding to disallow the liens, the trial judge commented that the purpose of a Fictitious Name Permit is to allow a licensed physician to practice under a name other than his or her own that would otherwise be a violation of state law, and concluded that inasmuch as conduct which violates state law cannot be sanctioned by the Workers’ Compensation Appeals Board, the unpaid lien should be disallowed. The Court agreed, and emphasized the fact there was a specific regulation that prohibited Dr. Gandhi from rendering professional services using a fictitious name prior to issuance of a Fictitious Name Permit.
Another Second District decision, Continental Medical Center of Paramount, Doctors Medical Group of Orange v. Workers Compensation Appeals Board (2000) 65 CCC 162, extended the aforementioned principle even farther, and ordered reimbursement of amounts paid to a medical provider who did not possess a Fictitious Name Permit and was not a professional medical corporation when treatment was rendered. The lien claimant argued that any defect was a mere technicality and was cured retroactively, but the trial judge concluded the Legislature required the Fictitious Business Name Permit for a purpose, which was to “allow the public to check and determine who owns the medical provider and to allow the patient to properly name and sue the proper party in the unfortunate event that the patient might have been subjected to some type of medical malpractice. It also allows patients to determine that those who are rendering treatment are in fact physicians licensed to practice in the State of California.” The trial judge concluded that the public policy objectives were not mere technicalities, but designed to protect the public health, and did not believe she had the power to undermine the intent of the Legislature. The Workers’ Compensation Appeals Board denied lien claimant’s petition for reconsideration, and the Appellate Court denied lien claimant’s Petition for Review.
The Garcia v. SCIF claim was recently reviewed for reconsideration. The WCAB determined the medical liens filed by N&S Neurology should be disallowed automatically. The WCAB created a distinction for the requirement of a fictitious name permit. Specifically, the WCAB found that a fictious name permit is required to provide medical treatment. However, a fictious name permit is not required for “other services or goods” that do not require a medical license. In other words, the WCAB intends to allow the lien to the extent the charges represent “goods” as opposed to “medical treatment.” The WCAB returned the case to the trial level for a proper review of each lien and the nature of the services provided. Until the review is complete, the disallowance of the lien in its entirety cannot be determined.
It’s important to keep in mind that there is a surprising number of providers who do not have the requisite fictitious name permit, or did not have a permit on the date of service. N&S Neurology argued on appeal that the State Compensation Insurance Fund came to court with unclean hands because it was apparent at trial that State Compensation Insurance Fund refused to pay N&S Neurology because it lacked a Fictitious Name Permit, but had similarly situated physicians in its Medical Provider Network who did not have Fictitious Name Permit and s were rendering medical treatment to injured workers at their request.
A provider’s Fictitious Name Permit status can be readily checked on the California Medical Board website at: http://www.medbd.ca.gov/licensee/fictitious_name.html. Unfortunately, the website only lists one office and does not list all satellite offices, but a hard copy of the permit listing all satellite offices is available from the licensing division of the California Medical Board.