INSURER BITES DOG
In what has been an unusual case, AETNA has sued a physician owned surgical facility, claiming that the physicians that control the facility improperly referred patients to the surgical facility. The claim is based upon state law in Pennsylvania, and is apparently based on the fact that the surgical facility waived out-of-network costs, co-pays and balance billing.
Traditionally, such suits have been part of the FCA or state equivalent whistleblower suit. Also, normally insurers simply refuse to continue to include such physicians or facilities in a provider agreement where the insurer believes the provider has acted wrongly.
This case is in the very early stages of motions to dismiss and other dispositive motions, but is worth following.
FCA VERDICT OVERTURNED AT 7TH CIRCUIT
An Illinois FCA action which resulted in $19M in fines and compensatory damages of over $3M has been overturned by the 7th Circuit. The case involved a nursing home, and the whistleblower/realtors that worked or had worked at the facility. The 7th Circuit found that the whistleblowers suit did not establish that the services billed were worthless, or that the completion and submission of minimum data sheets was a false certification for purposes of FCA.
The lesson here is while the nursing home may have avoided millions of dollars in costs, all providers should constantly review their billing and certifications to make sure that they are essentially correct and factual. It is unlikely that courts of appeal will overturn jury verdicts routinely.
CMS ALTERNATIVES TO MEDICAID CLAIM APPEALS
The Office of Medicare Hearings and Appeals (OMHA), the section of HHS responsible for ALJ hearings, has at least a limited offering of two alternatives to normal ALJ appeals. Normal ALJ hearing appeals (the appeal after lower level appeals efforts have not succeeded with OIG/CMS) have an expected delay of 2-3 years despite federal regulations which require an ALJ hearing officer to issue a decision within 90 days of a provider hearing request.
Ignoring, for the moment, what happens to our government when it does not follow its own laws and regulations, these new offerings, a settlement conference facilitation pilot program and a statistical sampling pilot program may be available.
The settlement conference facilitation pilot program is a mediation program. If you meet certain criteria, you can request mediation while your appeal is pending at the ALJ stage, apparently without losing your place in line if the mediation fails. There are a number of other issues with it, but it may be worth a try to try to speed up resolution since CMS withholds the entire amount of money it claims it is overpaid during the appeal period. This is the reason why appeals were supposed to be decided within 90 days, and not two or three years.
The other program, the statistical sampling program, also has a number of eligibility requirements, and has only applied to a narrow group of appeals filed in the second quarter of 2013. A statistical sampling procedure is determined for these appeals, and then all of the appeals within that set of claims will be determined under a single ALJ appeal number. The program is designed to be assigned to the next available ALJ. Again, this may provide some expediting of a decision where continued withholding by CMS is effectively damaging the provider.
Neither of these programs solve the appeal problem, but they may be alternatives for certain providers.
Plaintiffs continue to bring unsuccessful EMTLA actions. The Emergency Medical Treatment and Active Labor Act requires that a hospital provide medical screening and stabilization of individual’s seeking emergency care, and to do so in a nondiscriminatory manner. In a recent EMTLA case arising in New Jersey, the plaintiff claimed that the hospital had delayed or withheld medical treatment after learning that plaintiff lacked health insurance. Apparently, the plaintiff presented at the hospital complaining of rectal bleeding and back pain. Within 15 minutes the patient was seen by a triage nurse, and was scheduled for admittance. The patient stormed out of the emergency room before being admitted.
24 minutes later the plaintiff stormed back into the emergency room with the same complaints. Apparently the plaintiff was seen and either analyzed or treated on nine different occasions during the evening.
The court found when an individual presents for treatment at the emergency department of a hospital, the hospital must provide an appropriate medical screening to determine whether an emergency medical condition exists. If an emergency medical condition is determined to exist, the hospital, ordinarily, must provide stabilization treatment before transferring the patient. The hospital must do this without regard to whether the patient is insured or can pay.
Here, the evidence was that the hospital performed its normal and usual triage and screening on the patient, provided pain killers and other treatment, and took other steps that were normal and appropriate for preadmission or pre-transfer. The court found that the patient failed to provide any information that the hospital treated him differently, or otherwise violated EMTLA.
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 on this newsletter or legal matters at (812) 402-1600 or firstname.lastname@example.org.