PATIENT FRUSTRATIONS WITH INSURER REFUSALS TO PAY

Plaintiffs’ lawyers continue to seek methods to force insurers to pay, particularly in non-network situations.  A recent case indicates the tensions between patients and their insurers where the patient claimed there were no in-network physicians capable of performing a certain procedure.  The patient made a precertification request for out of network surgeon’s services at the in-network benefit rate.  In this case, AETNA denied the request. Plaintiff chose to complete the surgery with the out of network surgeon anyway.  After the surgery AETNA then claimed that three in-network physicians could have allegedly performed the surgeries.  Plaintiff claimed that none of the listed physicians had experience with the particular procedure.

The plaintiff brought ERISA suit, and the dispute then turned to plaintiff’s request that AETNA fully disclose all documents where AETNA set the rules for, or discussed internally, its process and decision making here, and in similar cases.  AETNA refused to provide the documents claiming that somehow disclosing the facts in this case would be unfair to AETNA.  The court ordered AETNA to provide all documents despite their requests that only the summary plan descriptions are relevant to a case.  Similar cases have reached differing conclusions, and it is likely that in the next year or so there will be numerous additional suits until federal courts set a clear and unambiguous standard for what documents insurers and healthcare providers must disclose of their actual decision making documents, not just summary plan documents.

This discussion should be a wakeup call to insurers and to healthcare providers to make sure that their decision making documentation is clear, concise and complete.  I believe the clear trend will ultimately require the disclosure of any documents which reflect the decision making process on particular treatments and treatment plans, and on decisions whether to reimburse and how much to reimburse.  That this is likely to continue is pointed out in a case where the actual charges were $100,000.00, and the “allowed” amount by the insurer was only approximately $2,900.00.  With such an extreme variance between actual charges and allowed, it is likely that this matter will be determined by the courts, and perhaps ultimately by legislation since its unlikely patients will be able to deal with payments of such wide variances.

EX WELLPOINT/ANTHEM CEO EARNS $20,000,000 IN 2012 FOLLOWING FORCED RESIGNATION

The former CEO walked away with $20,600,000 in 2012 after being terminated.  This may be an interesting fact to know the next time that Wellpoint/Anthem tries to cut its reimbursement rates to your hospital or practice.

ADVENTIST PAYS TO RESOLVE CLAIM INVOLVING PHYSICIAN COMPENSATION

Adventist Health agreed to pay $14,100,000 to resolve an FCA action alleging improper physician compensation that involved the Anti-Kickback Statute, STARK Law and FCA.  The California based operator of 19 hospitals and 150 clinics improperly provided doctors assets such as supplies and inventory at less than fair market value, and is alleged to have overpaid referring physicians for teaching services.

INDIVIDUAL MARKET RENEWAL NOTICES UNDER ACA

Employers whose plans are grandfathered and the issuers of those policies are prohibited from using marketing practices that have the effect of discouraging the enrollment of persons in Qualified Health Plans (QHPs).  CMS has published guidance providing model language to existing covered individuals about the new coverage options in the individual market including the new market places (f/k/a exchanges).

INDIANA/ILLINOIS HEALTH MARKETPLACE (EXCHANGE) STATUS

As of May 1, Illinois had only six insurance carriers planning to participate in the Illinois Health Insurance Marketplace under ACA.  The number participating so far is approximately 1/3 of the number earlier predicted.

Indiana is up to exactly one carrier.  Since Indiana is part of the Federal Marketplace, there will also be at least one federally sponsored provider.  However, the lack of competition in both Illinois and Indiana is fueling concerns that the plans will not be affordable or acceptable.

DOL GUIDANCE ON EMPLOYEE ACA COVERAGE OPTIONS

   On May 8^th the Department of Labor issued guidance on the timing and content of notice to employees of coverage options under ACA.  The employers are required to provide a notice to each new employee at the time of hiring beginning October 1, 2013.  For current employees, the notice must be given no later than October 1, 2013.  The DOL provides model language both for employers who do not offer health plans, and for those who do offer health plans.

This newsletter is edited by Paul Wallace of Jones • Wallace, LLC, a member of the American Bar Association Healthcare Law Section and the American Health Lawyers Association who has been representing physicians and healthcare practices for over 25 years.  Mr. Wallace assists physicians in health practices in contract items, federal legal compliance, creation of practice entities, estate and wealth planning and similar issues.  Please feel free to call if you have any questions about this newsletter or any other matter at (812) 402-1600 or pwallace@joneswallace.com.