64
Opinion of Stevens, J.
(1982).* That is true whether the claim is asserted against a private insurance carrier or against a public entity that self-insures. It is equally clear that the State's duty to establish and administer a fair procedure for resolving the dispute obtains whether the dispute is initiated by the filing of a claim or by an insurer's decision to withhold payment until the reasonableness issue is resolved.
In my judgment, the significant questions raised by this case are: (1) as in any case alleging that state statutory processes violate the Fourteenth Amendment, whether Pennsylvania's procedure was fair when the case was commenced, and (2), if not, whether it was fair after the State modified its rules in response to the Court of Appeals' decision. See ante, at 46, n. 3. In my opinion, the Court of Appeals correctly concluded that the original procedure was deficient because it did not give employees either notice that a request for utilization review would automatically suspend their benefits or an opportunity to provide relevant evidence and argument to the state actor vested with initial decisional authority. I would therefore affirm the judgment of the Court of Appeals insofar as it mandated the change described in the Court's n. 3, ante, at 46. I do not, however, find any constitutional defect in the procedures that are now in place, and therefore agree that the judgment should be reversed to the extent that it requires any additional modifications. It is not unfair, in and of itself, for a State to allow either a private or a publicly owned party to withhold payment of a state-created entitlement pending resolution of a dispute over its amount.
Thus, although I agree with much of what the Court has written, I do not join its opinion for two reasons. First, I think it incorrectly assumes that the question whether the
*As the Court correctly notes, "the State's role in creating, supervising, and setting standards for the URO process [do not] differ in any meaningful sense from the creation and administration of any forum for resolving disputes." Ante, at 54.
Page: Index Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NextLast modified: October 4, 2007