Tuesday, June 08, 2010
The Franz Case
The Franz case was decided on May 13, 2010 by the Court of Appeals. It concerns utilization review which is a process to review a treating physician. It can lead to the replacement of that physician or other consequences that directly impact a claimant. In this case the claimant addressed two points both of which were shot down by the court yet both have some logic to them. First he said the process violated his right to due process because he had no opportunity to discover and present evidence. Second he asserts a potential conflict of interest argument which was not permitted in the process. The court essentially said that there was no violation of Rule 10 which governs the process. The claimant had no right to assert a due process argument since it did not affect a property interest as only retroactive denial of treatment or benefits allows for such a due process argument said the court. It also said the rule was not violated as there was no conflict of interest as defined by the rule. Essentially the claimant could not explore and discover nor could he present evidence on any conflict of interest. In this case the claimant believed there was an inherent conflict because the committee members are closely involved with the insurer and SelectNet a provider organization. This case is disturbing as it deprives the claimant, in the end, of his doctor and he sought review by an ALJ who said he had not overcome the decision by clear and convincing evidence. Let's see now...if you stop the claimant from presenting evidence in the UR proceeding and prevent discovery exactly how can he even try to overcome the decision by clear and convincing evidence? So here Pinnacol was the insurer and it sought to replace the physician and the UR committee involved members of SelectNet which Pinnacol has a pretty cozy relationship with and sure enough they recommend to replace the treating physician for the claimant. Does it seem fundamentally fair? Not to me but the case really narrowly defines due process and the Rule in this matter at least in my opinion.