Christiana Care Health Services v. Palomino , 74 A.3d 627 ( 2013 )

BERGER, Justice,

dissenting, with STEELE, Chief Justice, joining.

The majority holds that, because there is a five year statute of limitations for workers’ compensation payments, a regulation limiting the time within which a party may seek review of an adverse utilization review (UR) decision is invalid. The majority reasons that the UR decision may deny payment of the claimant’s last claim for workers’ compensation. Under those circumstances, the regulation would bar review of the UR decision after 45 days, thereby depriving the claimant of the benefit of the five year statute of limitations. There are two problems with this analysis. First, it overlooks the purpose and function of the statutorily mandated UR process. Second, it erroneously equates a limitation on the time to appeal from a UR decision with the limitation on the time to submit a claim.

Section 2322 created a Health Care Advisory Panel (HCAP) to: 1) design a healthcare payment system; 2) promulgate healthcare practice guidelines; 3) develop forms for healthcare providers, and 4) establish rules for the certification of healthcare providers. Section 2322F addresses the time and manner of billing and payment. It instructs the HCAP to develop a UR program. The stated purpose of the UR program is “the prompt resolution of issues related to treatment and/or compliance with the health care payment system or practice guidelines for those claims which have been acknowledged to be com-pensable.” ¹⁶ If a party disagrees with the UR findings, the party may petition the Industrial Accident Board for de novo review. Regulation 5.5.1, adopted pursuant to Section 2322F(j), provides that a party seeking Board review must file a petition within 45 days after the UR decision.

The majority’s invalidation of Regulation 5.5.1 defeats the purpose of the UR program. Section 2322 provides a comprehensive set of requirements and procedures to standardize treatment options and provide prompt payment to healthcare providers. Yet the majority holds that claimants have five years to seek review of an adverse UR decision. Not only does that contradict any notion of what constitutes a “prompt” resolution of a claim, it makes no sense at a practical level. If a claimant is seeking authorization to undergo a surgical procedure, or purchase mobility equipment, or enter into a course of physical therapy, the five year statute of limitations will have no bearing on the claimant’s rights. The claimant either will go ahead with the treatment despite an adverse UR decision, appeal that decision, or find other acceptable treatment. • After several years, the UR decision will be of little consequence. By then, the claimant will have obtained other services and mooted the issue. If the claimant still needs treatment, the claimant will be free to file a new petition and explain how his or her then current condition justifies the previously denied treatment. In sum, the 45 day appeal deadline does not conflict with the five year statute of limitations because there is no reasonable possibility that the claimant’s condition or the disputed treatment will remain static for five years.

Moreover, there is a difference between a statute of limitations and a limit on the time to appeal from a regulatory body’s decision. The Workers’ Compensation Act provides, for example, that Board awards become final if not appealed to the Superi- or Court within 30 days.¹⁷ No one would argue that the two statutes are in conflict, or that the Act’s five year statute of limitations extends that 30 day appeal period. That is because the statute of limitations bars claims for compensation, whereas the appeal period only bars review of a decision about a claim. The majority posits that if an adverse UR decision is the last claim for a particular claimant, the 45 day appeal period would limit the claimant’s right to wait five years to submit a claim. But the claim has been submitted when it is brought before the UR panel. The five year statute of limitations applies to the timeliness of the UR petition, not the timeliness of any appeal.

Finally, the majority states that, if the Board’s review of a UR decision is an appeal, the General Assembly should specify the time for appeal by statute. Instead, the General Assembly delegated that task to the HCAP. The legislature created the HCAP because, “issues related to health care in workers’ compensation require the expertise of the medical community and other health care professionals for resolution.”¹⁸ The HCAP, with its “diversity of perspectives,”¹⁹ was instructed to develop “complete rules and regulations relating to utilization review....”²⁰ There is no reason why those rules could not lawfully include a 45 day time for appeal.

We dissent and would reverse the Superior Court decision.

16 . 19 Del. C. § 2322F(j) (Emphasis added.).

17 . 19 Del. C. § 2349.

18 . 19 Del. C. § 2322A(a).

19 . Ibid.

20 . 19 Del. C. § 2322F(j).