Archives May 2012

NEW AETNA LAWSUITS-Out Of Network Providers Under Fire For Non Disclosure Violations!

AVYM offers Webinars to examine the new litigation trend of  lawsuits against out-of-network hospitals, surgical centers and doctors across the nation.  On April 18, 2012, Aetna filed a lawsuit against Humble Surgical Hospital LLC (HSH), in the United States District Court Southern District Of Texas Houston Division.  According to court documents,  “Aetna brings this action for common law fraud, money had and received, unjust enrichment and alternative equitable relief under the Employee Retirement Income Security Act (“ERISA”) for injuries suffered as a result of the excessive and unreasonable fees charged by the Center, a “non-participating” (i.e., non-contracted) surgical hospital”.  The complaint goes on to allege that HSH “through its owner-physicians, is financially abusing Aetna members via referrals to the Center’s out-of-network facilities in which the referring physicians have a financial ownership.”

This lawsuit should be a wake-up call for all Out-Of-Network hospitals, surgery centers and doctors across the nation.  Failure to recognize the impact of these legal actions and to quickly act with compliant solutions, will most likely result in a significant decline in reimbursements for the Out-Of-Network market by the end of 2012.  Avym’s webinars will examine this court case, its profound impacts on all OON providers, and explore compliant solutions and protections under ERISA and PPACA as well as OIG Guidance.  While we are certainly not in a position to judge the merits of these allegations or predict any judicial outcome for the ongoing litigations, we can examine payor lawsuits to find out what issues are avoidable and preventable.

The complaint also alleges that “All of this is accomplished without the Center or its owners informing the patient of the various financial incentives that could affect the type and level of care the patient receives. Moreover, the Center and its physician-owners ignore standard ethical obligations to the patients by further failing to disclose the economic interest and potential gain that the Center obtains from the patient’s out-of-network referral.”

Court case info: AETNA LIFE INSURANCE CO., Plaintiff, VS. HUMBLE SURGICAL HOSPITAL, LLC, Defendant CIVIL ACTION NO. 4:12-cv-1206 (Document 1 Filed in TXSD on 04/18/12)

The following section of the Aetna complaint alleges the following specific violations:

“”ii. Violations of Texas Occupations Code § 102.006

33. Section 102.006 of the Texas Occupations Code concerns failure to disclose in regard to affiliations with other health care entities. A violation of the statute occurs if one accepts remuneration to secure or solicit a patient in a manner

(Case 4:12-cv-01206 Document 1 Filed in TXSD on 04/18/12 Page 10 of 23)

permitted under § 102.001, and at the time of the initial contact and at the time of the referral, disclose to the patient (1) the person’s affiliation, if any, with the person for whom the patient is secured or solicited, and (2) that the person will receive, directly or indirectly, remuneration for securing or soliciting the patient. Tex. Health & Safety Code Ann. § 102.006(a) (West 2012).

34. The Center has violated Tex. Occ. Code Ann. § 102.006 by failing to disclose to the patient that their referring physician is affiliated with and has an ownership stake in the Center.” 

(Case 4:12-cv-01206 Document 1 Filed in TXSD on 04/18/12 Page 11 of 23)

This new lawsuit represents a continuing trend  by most payors in the reimbursement landscape for all out-of-network providers.  AVYM Webinars are designed to identify the litigation epidemic and propose practical strategies and solutions through proactive and compliant practices.

Additionally, as mentioned before, according to the Wall Street Journal on Feb 01, 2012, “Aetna Inc.’s earnings rose 73% as the health insurer continued to benefit from light medical costs amid a sluggish pace of patient visits to hospitals and doctors’ offices.” (

According to the report from Crain’s New York Business on Feb. 07, 2012, Edward Neugebauer, Aetna’s head of litigation, is quoted as saying, “By spreading the cases out across the country, Aetna is using litigation ‘as a stepping-stone to open policy doors’ at the state level.”


LATEST NEWS: Aetna Accuses New York Doctors of Overcharging Patients

“Aetna made headlines in California last week when it sued seven California surgery centers for treating patients at out-of-network rates, charging $66,100 for a bunion repair. But in New York, Aetna quietly filed a lawsuit last October against New York doctors whose patients were socked with massive bills—in one case for more than $425,000.

“The two lawsuits, along with earlier ones filed in New Jersey and Texas, form a strategy by Aetna to combat what it sees as abusive out-of-network charges by providers, according to Crain’s Pulse.”

Also as stated in the report from the Crain’s New York Business on Feb. 07, 2012, Aetna complained about the provider’s failure to disclose the referral to out-of-network (OON) and OON UCR charges, and threats to balance bill patients for unpaid claims:

“The doctors did not clearly communicate the charges to Aetna patients, Aetna alleged […]

“Through a billing company, Business Dynamics, Hishmeh threatened to bill patients for the portions of the bills unpaid by Aetna, according to the lawsuit.”

At the same time as the NY and NJ cases, according to a Bloomberg Businessweek article on Feb 6, 2012, Aetna sued seven OON California surgery centers for allegedly not collecting or waiving co-insurance from the patients (

“Bunion Repair at $66,100 Spurs Aetna Lawsuit Against Clinics”

“Feb. 3 (Bloomberg) — Aetna Inc. is suing seven California surgery centers for a billing system that it claims “recklessly subverts” health care delivery with charges of as much as $66,100 for a bunion repair.

“The lawsuit seeks to stop the centers from waiving the co-insurance payments people are supposed to be charged when they use doctors or facilities that don’t have contracts with their insurers. By not requiring such payments for so-called out-of- network care, the centers illegally lured patients, and then billed Aetna up to 2,500 percent more than what the company pays its contracted providers for procedures, according to the suit.”

The court case info: Aetna Life Insurance Co. v. Bay Area Surgical Management LLC, File 02/02/2012, Case #: 112CV217943, The Superior Court of California, County of Santa Clara.

Aetna TX case info: AETNA HEALTH INC vs. SOFOLA, IFEOLUMIPO O (MD) (Case #: 2011-73949 / Court 152), Harris County, Texas.

This new executive Webinar will discuss the following topics:

  • Compliant policies and practices for proper disclosures in order for patients to make informed decisions in exercising their freedom of choice for utilization of OON providers, solely based on the quality and safety of the care and reputations of the providers.
  • Why and how the waiver of deductible and co-insurance may be questionable practice, subject to the payor’s legal challenges in court and SIU investigations; how to avoid them with compliant policies and practice.
  • OIG: Fraud and abuse prevention brainstorming.  (
  • According to DOL: About 77% of Insured Americans Purchased Out-Of-Network Coverage in Private Industry (BLS, NBS 2010, page 11 of 167): (
  • PPACA & ERISA Compliant Appeals and litigation avoidance and/or support.
  • DOL: PPACA & ERISA Claims Regulations Assistance and Complaints Webpage (

To find out more about PPACA Claims and Appeals Compliance Services from AVYM please click here.

Located in Los Angeles, CA, AVYM is a leading provider of services focusing entirely on the resolution of denied or disputed medical insurance claims by participating in the nation’s first ERISA PPACA Claims Appeals Certification program.  AVYM also offers free Webinars, basic and advanced educational seminars and on-site claims specialist certification programs for doctors, hospitals and commercial companies, as well as numerous pending national ERISA class action litigation support.