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MGMA Louisiana – MGMA Mississippi July 20, 2018

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Presentation on theme: "MGMA Louisiana – MGMA Mississippi July 20, 2018"— Presentation transcript:

1 Payment Issues Workshop: Strategies for Getting Paid and Addressing Headaches
MGMA Louisiana – MGMA Mississippi July 20, 2018 Clay J. Countryman – Attorney/Partner Breazeale, Sachse & Wilson, L.L.P. Baton Rouge, LA

2 Emerging Issues in Provider-Payor Payment Issues
Agenda Discussion of payment-related rules for payment for services under different payor types Discussion of recent provider payment issues connected to Provider Agreements Recent hot payment issues affecting physicians and other providers Recent cases between Providers and Payors

3 Provider-Patient Issues: Recent Landscape
Recent increase in payment and other issues between providers and payors. Slow to no payment, increased audits by payors, increased pre-cert and pre-authorization requirements Provider de-selection, incorrect payment amounts/fee schedule

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5 Provider-Payor Payment Issues: Rules Affecting Payment
Depends on Type of Coverage Provider Agreement Provider Manual, Payer Policies State Law Federal Law

6 Rules Affecting Payment: Types of Coverage
Commercial Health Insurance Group Coverage (Fully-Insured or Self-Funded) Individual Coverage Medicare Medicare Advantage Medicaid Managed Care Medicaid

7 Rules Affecting Payment: Different Rules for Type of Coverage
Provider Agreement with Payor Claim Filing Deadline Appeal Process Reference to Provider Manual and Policies Appeal Rights Process Depends if contracted or non-contracted provider.

8 Rules Affecting Payment: Commercial Payors (cont’d)
Employer Health Plans (fully insured) Provider Agreement and health plan policy State Law Prompt Pay “All Products” prohibition Limit on time period to audit claims Statutes affecting basis of claims decisions

9 Rules Affecting Payment: Self-Insured Health Plans
Provider Agreement with insurance carrier or network Employer Health Plan (Self-Insured) Administered by a insurance carrier or Third-Party Admin. (Fiduciary Duty) Plan Document ERISA (appeal rights for patients and providers if provider is an “authorized representative”)

10 Payment Rules: Self-Insured Plans Coverage
Claims Pursued by Providers In collection actions, providers allege plans owe unpaid or underpaid benefits as reimbursement for services to plan members. Providers often allege claims under ERISA for benefits, for beach of fiduciary duties, for civil penalties and/or for attorney’s fees. Providers may lack ERISA standing to file suit because they are not participants or beneficiaries. Providers may acquire derivative standing under ERISA if they have valid and enforceable assignments

11 State Law Claims Breach of Contract, Tort and Statutory Claims for denial of claims Claims against a third party administrator, for example, for breach of reasonable care in making benefit determinations

12 Recent Hot Issues in Provider-Payor Payment
Insurance payors with several different products and different fee schedules. Payment to Out of Network Providers. Use of “Policies” by insurance payors Insurance payors response to waiver of patient copay obligations. Increased efforts needed by providers for pre-certification / pre-approval.

13 Recent Insurance Carrier Letter to a Physician’s Patient
“Occasionally, for a variety of reasons, a relationship ends between our network and a physician.”

14 Recent Letters from Carriers to Providers
“This Payment Appendix also applies to benefit contracts marketed under any name brand adopted by us in the future to supplement and/or replace [Carrier’s][Provider Name].” “If you choose not to accept this fee schedule for [Carrier], please send us written notice within 30 days after receiving this letter to:….”

15 Insurer Coverage and Payment Policies
Utilization management Coverage clarification Changing the contract in the middle of the term Expounding on what “medically necessary” means Change to the insurance policy the member holds

16 We Want Answers

17 Insurer Coverage and Payment Policies
Key Takeaways on Policy Changes Providers are beginning to challenge these policies by seeking remedies for breach of contract and injunctive relief in court and in arbitration. The policies implicate a variety of issues, including: breach of contract Physician versus insurer decision-making about what is “medically necessary” federal and state laws defining what constitutes an “emergency” Access to and quality of care The insurers argue that these policies are necessary to control the ballooning costs of healthcare

18 Current Out-of-Network Reimbursement Trends

19 Rules Affecting Payment: Medicare
Depends if provider is a participating or non-participating provider. Medicare Physician Fee Schedule Medicare Payment and Coverage Rules CMS website hwww.cms.gov/Center/Provider-Type/Physician-Center.html Medicare Appeals Process

20 Rules Affecting Payment: Medicare Appeals Process
Peer-to-peer Redetermination Reconsideration Office of Medicare Hearings and Appeals (OMHA) – Administrative Law Judge (ALJ) Medicare Appeals Council (Council) Federal District Court

21 Medicare Appeals: Peer-to-Peer
Evaluate the merits of the claim Assess available resources (i.e., Who will perform the peer to peer for your hospital?) Consider alternatives to pursuing peer-to-peer and/or appeal (e.g., is the claim within the window to self-deny and rebill?)

22 Medicare Appeals: Redetermination
A redetermination request must be filed in writing within 120 days from the date the party receives notice of an initial determination. The contractor mails or otherwise transmits written notice of the redetermination within 60 calendar days of the date the contractor receives a timely filed redetermination request. 42 C.F.R. §§ – Medicare Claims Processing Manual, Chapter 29, Section 310

23 Medicare Appeals: Reconsideration
A reconsideration request must be filed in writing within 180 days from the date the party receives notice of the redetermination. The contractor mails or otherwise transmits written notice of the reconsideration within 60 calendar days of the date the contractor receives a timely filed reconsideration request. 42 C.F.R. §§ – Medicare Claims Processing Manual, Chapter 29, Section 320

24 Medicare Appeals: OMHA-ALJ
A request for ALJ hearing must be filed in writing within 60 days from the date the party receives notice of the reconsideration decision. Generally speaking, an ALJ is required to issue its decision no later than the 90 calendar day period beginning on the date the request for ALJ hearing is received. 42 C.F.R. §§ – Medicare Claims Processing Manual, Chapter 29, Section 330

25 Medicare Appeals: Council
A request for Council review must be filed in writing within 60 days from the date the party receives notice of the ALJ decision. Generally speaking, the Council is required to issue its decision no later than the 90 calendar day period beginning on the date the request for Council Review is received. 42 C.F.R. §§ – Medicare Claims Processing Manual, Chapter 29, Section 340

26 Medicare Appeals: Federal District Court
A request for Federal District Court review must be filed in writing within 60 days from the date the party receives notice of the Council’s decision. 42 C.F.R. §§ – Medicare Claims Processing Manual, Chapter 29, Section 345

27 Rules Affecting Payors: Medicare Advantage
Medicare Advantage contractors administer their plans and benefits under their contracts with the Federal Government and under Federal Law. The State is only involved in licensing the plans and to some extent monitoring solvency. State Law does not apply. Medicare Advantage Plans are not private insurers offering private insurance. They are government contractors, administering government benefits.

28 Rules Affecting Payors: Medicare Advantage (cont’d)
All patient payment disputes must be handled through the Medicare appeals process, just as with traditional Medicare benefits determination appeals. Providers also likely must exhaust the Medicare Appeals process prior to engaging in litigation.

29 Rules Affecting Payors: Medicare Advantage (cont’d)
Providers are paid per their contract with the MA Plan or downstream network OR no less than the Medicare Rate Medicare coverage and payment is contingent upon a determination that: A service is in a covered benefit category; A service is not specifically excluded from Medicare coverage and the item or service is “reasonably and necessary”. MA plans need not follow Medicare claims processing procedures. MA plans may create their own billing and payment procedures as long as providers – whether contracted or not – are paid accurately, timely and with an audit trail.

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31 Out-of-Network Reimbursement Trends – Case Illustrations
Recent Notable Cases on OON Reimbursement/UCR Issues Cigna v. Humble, 878 F.3d 478 (5th Cir. 2017) Out-of-network physician-owned surgical hospital Cigna sued claiming overpayment, fraud, right to ERISA equitable remedy Alleged fee forgiveness scheme (waiving patient cost share) Alleged Humble inflated claims to obscure payment of kickbacks to physicians Humble counterclaimed alleging non-payment/underpayment of 595 claims and failure to provide plan documents After 9-day bench trial, district court awarded Humble $11,392,273 in damages and $2,299,000 in penalties District Court considered Cigna’s conflict of interest as plan administrator Cigna reimbursed itself based on what it “saved” plan sponsors

32 Out-of-Network Reimbursement Trends
Cigna v. Humble, 878 F.3d 478 (5th Cir. 2017) The 5th Circuit reversed the S.D. Texas Credited Cigna’s interpretation of plan exclusion for amounts the member was not legally obligated to pay Cited results of Cigna member surveys (154 responses) One member was told “everything was covered [at] 100%” One member was charged $276 for a $27,600 service Vacated the district court’s dismissal of Cigna’s fraud claim

33 Cigna’s ERISA Claims Overpayment Claims based on section 502(a)(3) of ERISA: Cigna wanted to recoup claims made to patients that had not fully paid their patient responsibility Specific Claims Seeking Recoupment: Lien by Agreement Cigna Argued that the Plan Language created a Lien by Agreement Tracing Method Cigna asserted that Overpayments were still in possession and readily ascertainable Injunction and Declaration Cigna sought an order from the Court Declaring Overpayments and Enjoining Humble from Historical Billing Practices Money Had and Received/Unjust Enrichment

34 Cigna’s Non-ERISA Claims
Cigna’s Additional Non-ERISA Claims based on Humble’s conduct, including: Fraud – Cigna claimed that: Humble failed to disclose Physician Use Agreements Increased Cigna bills by 30% as a “kickback” to Physicians Negligent Misrepresentation – Cigna claimed that: Humble failed to supply accurate billing information on the UB form Humble failed to properly document the UB billing information Texas State Statutory Violations – Cigna claimed that: The Humble Physician Use Agreements allowed referral fees which were banned by Texas statutes

35 Humble’s Counterclaims
ERISA Claim for the full benefits owed on 595 Claims billed to Cigna Claims included Plans: Insured by Cigna Administered by Cigna Humble, pursuant to the Assignment of Benefits, stands in the shoes of the Patient Declaratory Judgment Claim for Penalties under ERISA Section 502(c) requires a Plan Administrator to respond to document requests or face a monetary penalty

36 Ruling on Cigna’s Claims
The Court ruled that Cigna was not entitled to any refunds because of Humble’s actions: When third party contractors (such as Multiplan) negotiated the rates, the negotiated rate because the “usual and customary rate” for the specific claim The Court essentially held that there was a negotiated agreement for the specific claim and no overpayments The Court denied all of Cigna’s claims for refunds and for relief, including: ERISA Claims Fraud Negligent Misrepresentation Texas Statutory Claims

37 Goel v. Regal Medical Group, Inc., 11 Cal. App. 5th 1054 (2017)
Emerging Issues in Managed Care Litigation – Out-of-Network Reimbursement Trends Goel v. Regal Medical Group, Inc., 11 Cal. App. 5th 1054 (2017) Dr. Goel sued to recover the difference between his billed charges and Regal Medical Group’s payments Regal’s expert on UCR testified based on FAIR Health data, noting that average range of rates by private payers ranged from % of Medicare rates Rejecting Dr. Goel’s arguments, court found that 150% of Medicare rates was a usual, customary and reasonable rate

38 Overpayment Claims By Insurers
UnitedHealthcare Insurance Company, et al v. American Renal Associates LLC, et al., U.S.D.C. D. MA, Doc. No. 1:18-cv GAO, (filed Mar. 30, 2018). UnitedHealthcare seeks recovery from provider of dialysis and related services to patients with end stage renal disease alleging, “ARA orchestrated a multi-faceted scheme that targeted individuals [ ] insured under United’s commercial Employer Group Health Plans [ ] and COBRA plans as profit centers that could be sued to grow ARA’s commercial mix, illegally increase revenues and profits, and inflate the company’s IPO price.” “ARA [interfered with United’s network contracts with nephrologist by] offering financial incentives to nephrologists who were in a position to refer United members to ARA’s out-of-network facilities for dialysis, in an effort to undermine United’s contracted networks and divert United members away from receiving dialysis at network providers.”

39 Questions? Thank You!


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