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Thread Title: AIR AMBULANE EXEMPT FROM FEE SCHEDULE?
Created On Monday January 19, 2009 11:04 AM


jsullivan@aims4claims.com
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Monday January 19, 2009 11:04 AM

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CALSTAR air ambulance is asserting that the workers compensation fee schedule does not apply to the services provided by CALSTAR. The basis for the argument is based on 49 U.S.C. 41713(b) states are prohibited from enacting or enforcing "a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier...." Since the workers' compnesation rates established in California's OMFS for ambulance services are regulations enacted by the State of CA and relate to the prices and/or the services provided by CALSTAR, the state enacted workers compensation rates infringe on federal law and are therfore preempted. I have checked with DWC and various bill review organizations and the opinion is that my client should stick to the fee schedule and adjudicate the matter. Has anyone else had this matter come up? Has it been taken it to trial?

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jonbrissman@verizon.net
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Monday January 19, 2009 4:43 PM

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Hi, J. Sullivan. There has been no litigation about 49 U.S.C. 41713(b) [the Airline Deregulation Act, or ADA] in the WCAB, but California civil and appellate courts have extensive experience in interpreting the statute. In Romano v. Am. Trans Air, 48 Cal. App. 4th 1637 (1996), the Court of Appeal analyzed the statute thusly:

"The foundational underpinning of any preemption issue is Congressional intent. (See Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516 [120 L. Ed. 2d 407, 422, 112 S. Ct. 2608] [the purpose of Congress is the "ultimate touchstone" of the preemption analysis].) Indeed, concepts of federalism and respect for state sovereignty create a presumption that Congress intends to permit the states to devise their own remedies for common law damage claims and, in the absence of an express congressional command, state law is preempted only if it actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field by a pervasive and complex regulatory system as to make reasonable the inference that Congress left no room for the states to supplement it. ( Fidelity Federal Sav. & Loan Assn. v. De La Cuesta (1982) 458 U.S. 141, 153 [73 L. Ed. 2d 664, 675, 102 S. Ct. 3014]; Solorzano v. Superior Court (1992) 10 Cal. App. 4th 1135, 1139 [13 Cal. Rptr. 2d 161].) "
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I cannot see how a state's enforcement of a maximum fee schedule conflicts with federal law, since there is no federal fee schedule for the services. Also, a state fee schedule establishes a ceiling, not a floor, so healthy deregulated competition (the intent of the ADA) can occur.

Pay per the fee schedule and tell them that you'll litigate any remaining balance they claim is due.

JCB

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jsullivan@aims4claims.com
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Saturday January 31, 2009 11:49 AM

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Thank you for your replies. I also posted this on the legal forum and received some replies. I have now been informed that there is a lawsuit being circulated entitled Cal Shock Trauma Air Rescue v SCIF, et al. There are codefendants named including about 100 or so insurers, Cities, JPA's and TPA's. The lawsuit has been filed in Federal court and they requested defendants accept service by mail. My TPA and JPA have not yet been named or served. The person who provided this information to me is a named co-defendant and is awaiting service of the suit. Let's hope that SCIF and the codefendants join together to provide the best defense possible on this important issue.

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