LESSONS FROM DEFENDING PHYSICIANS FROM PAYOR REIMBURSEMENT CLAIMS

We recently represented medical practices in three substantial claims by payors for reimbursement of claims already paid.  The claimants included CMS, Welborn Health Plans and Anthem.  In each case, we were able to convince the payors that their claims were not valid, and to withdraw their claims saving our clients hundreds of thousands of dollars.

No one can honestly suggest that every such claim can be resolved without any repayment, even with substantial experience and expertise.  However, our experiences in representing our clients indicate that the following steps can lead to a more successful outcome:

1. Pay immediate attention to any reimbursement claim.  These claims do not go away, and if ignored, simply result in withholding from future reimbursement streams.
2. Speak with your attorney immediately.  Collect all of the documents, including provider agreements for review.
3. Review the reimbursement claim in very great detail.  Often the answer is in those details.
4. Communicate with the payor.  Often such communications can give a clue as to why the payor has suddenly decided to seek reimbursement.  This may be due to a change in their rules, a change in law, or merely a change in auditors who may take a different view.
5. Always hire the best billing company possible.  Quality in billing helps avoid these repayment claims.

CAN UNDERPAID HOSPITALS SUE?

The Supreme Court will hear oral arguments relating to an Idaho case on whether providers have the right to sue a state for not adequately reimbursing the provider.  Similar suits have been in the works since at least 2009.  At various times during Medicaid’s existence, providers have pointed out that the share of “costs” reimbursed by Medicaid continues to decline, in some cases, only paying 30% of the actual cost of providing treatment.  Hospitals in particular, but physicians also, have been seeking some way to deal with the growing gap between their costs and their reimbursement, and lawsuits against the states have been again pushed as a way to force the state to comply with the plain language of statutes that require providers to be paid their “cost” for providing services.  Many states have paid mere lip service to this statutory requirement while claiming in court that they are immune from lawsuits from providers for not following the relevant statutory requirements.

It now seems that the Supreme Court may decide whether states can simply ignore statutory requirements in determining Medicaid reimbursement rates.

HEALTHCARE COSTS DISPARITIES

In some parts of the Country, various aggregators of healthcare data have begun releasing price information for hospitals and physicians.  The latest was in North Carolina by Blue Cross/Blue Shield.  A review of this data indicates that, for example, kidney transplants at Duke University may cost approximately $160,000 where at Carolina’s Medical Center the charge is approximately $107,000.  Coronary bypass (without cardiac catheterization) in North Carolina varied from $79,000 at one location to $49,000 at another location.

While differences in patient population can explain some of the charges, this growing price transparency will necessitate higher cost providers to justify the disparities.

PHYSICIAN PAYMENTS IN 2015

The single most obvious physician payment issue in 2015 will be for those not participating in the Physician Quality Reporting System (PQRS).  Reimbursement rates will often be cut for those not participating in the PQRS Program, and major issues still remain in the sustainable growth rate formula which has become a political football in Congress.  The SGR yearly fixes have merely served to create larger and larger percentage amounts that will be cut from physician’s reimbursement if a long-term SGR cannot be determined.

There are also changes in billing as CPT codes are deleted and added; including a CPT (99490) which allows medical practices to bill for time spent developing a plan and managing the care of patients with multiple chronic conditions.

ACTUAL INJURY FOR DATA BREACH

Michigan joins the list of states requiring a plaintiff to show actual injury in order to file and be awarded damages for data breaches.

Opponents of this position point out that these large data breaches create large numbers of plaintiffs, each with potential damages, but often hard to prove what damage occurred to the individual plaintiff.  These advocates want a statutory scheme which would allow a minimum damage amount like the $1,000 minimum damage amount for certain consumer lending violations.

Obviously, those who are more likely to cause large scale data breaches continue to insist that the traditional actual injury standard be applied, and then use that position to dismiss these claims often filed as class actions.

Again, this is a political football and one that is likely to be settled by the legislature, and not by the courts.

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.