THOSE ZANY WELLPOINT/ANTHEM FOLKS AGAIN

In 1999, WellPoint (which merged with Anthem in 2004) was sued by Dr. Edwin Collins and other physicians alleging that an Anthem Company failed to timely and adequately reimburse for medical services, and included claims for breach of contract, conversion, tortuous interference, breach of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act and the Unfair Insurance Practices Act.  In 2001, 10 more State and Federal lawsuits alleging improper denial of reimbursement were filed.  In some of these suits, the plaintiff claimed that Anthem conspired with other MCOs to deny, delay and diminish payments to doctors.

Anthem chose to settle these suits, and to apparently make substantial payments to the various plaintiffs.  WellPoint/Anthem, being an insurer, decided to try to recover its payments for the alleged wrongdoing from WellPoint/Anthem’s insurers.

On June 19, 2013, the Indiana Court of Appeals ruled, upholding a lower court grant of Summary Judgment in favor of WellPoint/Anthem’s insurers, and denying WellPoint/Anthem the right to recover under the insurance policies.  Any provider trying to determine whether to file suit against WellPoint/Anthem for any of its activities in claim processing, negotiating or failing to negotiate with provider and in similar matters, would do well to study this suit and obtain copies of the ten or more underlying suits against WellPoint/Anthem described in this opinion.

In a related coincidence, the American Psychiatric Association, a state society, the Connecticut Child and Adolescent Psychiatry Board, and two individuals filed a lawsuit claiming that WellPoint/Anthem discriminates against patients with mental illnesses.  The Complaint, filed in Federal Court, claims WellPoint/Anthem used changes in billing codes designed to reduce fees paid to psychiatrists, and increase out-of-pocket costs.

ACA DELAYED – IMAGINE THAT!

Announcements last week that several start dates for ACA requirements are delayed one year, including employer ‘play or pay’ rules were met with mixed reactions.  I will offer more when sufficient detail is available.

This announcement makes it very clear, though, that the implementation of ACA will be an interesting process

NEW WORKPLACE WELLNESS PROGRAM RULES

On June 19, 2013, HHS, DOL and Treasury issued joint rules for workplace wellness programs.

The regulations allow employers to offer larger rewards to workers who succeed under the wellness program.  These regulations increase the maximum possible reward to 30% of cost of employee only coverage and for smoking related programs, to 50%.  However, employers must offer alternatives to outcome based programs.  For example, a tobacco free employee program must recognize “a cycle of failure and renewed effort.”  The revised rules continue to prohibit penalties and allow rewards only.

Still up in the air, since the Equal Employment Opportunity Commission did not apparently participate in prepping the new rules, questions remain with regard to statutes which prohibit asking disability related questions unrelated to a job or about an employee’s family medical history.  It is unclear how wellness programs can be intelligently designed without asking questions that may be prohibited under other laws.

HITTING BACK

Shasta Regional Medical Center attempted to respond to media reports of alleged Medicare fraud.  Unfortunately, the Medical Center’s response to a specific complaining patient’s charges regarding fraud allegations included bits of information which could only be protected health information from medical records.  In this case, not only was the Medical Center embarrassed by its handed response, but it also agreed to pay $275,000.00 for the HIPAA violation.

What is the lesson?  Have a pre-planned, centralized method for dealing with publicity and allegations in the media.  Generally, it will be difficult to respond directly to such allegations.  If the provider believes they are not true, it should issue, consistently, statements such as “We will have no specific comments regarding the factual allegations due to HIPAA.  The allegations are untrue, and we invite anyone who is interested in hearing the truth about these allegations, to attend any trials or hearings regarding this matter where HIPAA will allow us to speak the truth”.

In many cases, the best response may simply be no comment until the litigation is terminated, presumably in the hospital or practices favor at which time a press release, carefully scrutinized to exclude any PHI, may state affirmatively that the allegations made by so and so were determined to be untrue by the (insert jurisdiction) court upon hearing all of the facts in this matter.

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.