HEALTH INSURANCE WITHOUT A HOSPITAL

Some insurers who offer plans on state or federal health insurance exchanges will offer a new type of policy that excludes all hospital benefits.  ACA allows large self insured employers to offer these plans.

On the one hand, proponents say that these plans help start the process of encouraging employers who do not offer coverage, to offer this limited type of coverage which is directed at prevention and primary care.  Opponents claim that these plans only offer the illusion of coverage, and that when any significant illness or injury occurs, the flaws in these plans are exposed.  Also, opponents point out that these plans encourage the use of emergency rooms by offering relatively low copayments for emergency room use.

This is a trend worth watching.

EMTLA CLAIM SURVIVES

A California federal court recently dismissed part of an EMTLA claim, but upheld the sufficiency of another EMTLA claim at the preliminary motions stage.

The plaintiff presented at a San Diego hospital emergency department.  The plaintiff was examined by a nurse practitioner rather than a physician, and claims that the nurse practitioner’s examination failed to diagnose meningitis which caused a readmission several days later.  The plaintiff’s claim was a two part claim, one of disparate treatment and one of inappropriate screening.  The plaintiff claimed that EMTLA requires a medical screening to be appropriate only if it is designed to identify acute and severe symptoms that alert the physician of the need of immediate medical attention to prevent serious bodily injury.  The court allowed this claim to proceed.

The other claim, that of disparate treatment, was dismissed because plaintiff failed to show that her examination by the nurse practitioner was altered or changed in any way by her lack of medical insurance, or that the plaintiff was treated or examined differently.

FCA CRIMES

The current federal false statement statutes criminalize “knowingly and willfully” making materially false, fraudulent or untrue statements or representations in any federal matter.  This would appear to make any false statement that is “knowingly and willfully” made to any federal officer or agent, even when not under oath, a criminal offense.  Since nearly all FCA and overpayment investigations involve making statements, or providing information to federal personnel, this dramatically raises the stakes in dealing with overpayment or FCA investigations.

Recently, the government conceded in a supreme court brief, that to convict a defendant of “willfully” making false statements, the court or the jury must conclude that the defendant acted with the knowledge that his/her conduct was unlawful.  The issue here is the use and meaning of the word willfully in the required standard.  In some circuits the courts have held, in essence, that the government is only required to prove the defendant deliberately made a statement with knowledge it was false.  Other circuits have held that the use of the word willfully, in addition to knowingly, means a higher standard.  This means not only must the statement have been known to be untrue; the defendant must have also intended to mislead the government.

The practical effects of this concession by the Department of Justice in a brief remain to be seen, but it highlights the dangers of making statements to any federal official, even not under oath, in any investigation.  All responses to discovery requests and all statements to the government in response to investigative inquiries, need to be reviewed by someone other than the actors in the case, the providers, billers, clerks and administrators, to vet these statements against objective and subjective standards which may be applied in these cases as a trap for the unwary, and in this case, a trap that may lead to criminal charges.

RESPONDING TO OVERPAYMENT DEMANDS

Providers increasingly face claims of overpayment by insurers and CMS (and their private contractors).  As we often discuss, a claim of overpayment is often followed by a choking off of cash flow by the insurer or CMS withholding the overpayment claim amount from the reimbursement stream.

Providers and hospitals should have a strategy and policy in place to respond to all systemic overpayment claims to try to limit the scope of overpayment claims, and to try to limit the dramatic effect of reimbursement stream offset/withholding.

These policies should include an immediate examination of the details of the overpayment claim to determine if the overpayment claim is timely, whether the calculation presented is accurately made, what ongoing impacts such overpayment claims have to future payment reimbursement streams and the ability of the provider/hospital to modify its billing to correct (if there is any correction to be made) immediately to ongoing billings.

The time to set up, create and test such policies and programs is prior to a systemic overbilling claim by an insurer or CMS.  At the time that such a claim is actually received, the billing departments/organization may be under too much stress to properly approach such claims.

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 pwallace@joneswallace.com.