Understanding Aetna’s high profile lawsuits against OON providers

AVYM offers new Webinars to examine recently reported high profile Aetna lawsuits against out-of-network hospitals, surgical centers and doctors across the nation.  Lawsuits were filed in CA and TX, for allegedly not collecting deductible and co-insurance.  Simultaneously, additional lawsuits were filed in NJ and NY for over collecting (balance billing).

AVYM Webinars are designed to identify the litigation epidemic and propose practical strategies and solutions to avoid possible litigation through proactive and compliant practices.

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 must examine the Aetna lawsuits to find out what issues are avoidable and preventable.  These Aetna litigations represent a structural change by most payors in the reimbursement landscape for all out-of-network providers

Additionally, 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.” (http://online.wsj.com/article/SB10001424052970204740904577196551243915014.html)

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.”

(http://www.crainsnewyork.com/article/20120207/HEALTH_CARE/120209916#)

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 (http://www.businessweek.com/news/2012-02-06/bunion-repair-at-66-100-spurs-aetna-lawsuit-against-clinics.html):

“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.

“Providers are caught in a catch-22 situation; if they do not collect patient’s co-pays and deductibles, they may be subject to lawsuits as in the CA case.  On the other hand, if they collect patient’s co-pays and deductibles, they may be subject to lawsuits as in the NY and NJ cases.  It is a situation where providers are damned if they do and damned if they don’t.  Aetna may or may not prevail in court for these allegations, but we must look to why and how providers may or may not get sued” said Vincent Flores, President of YF Corporation, and a national expert on PPACA and ERISA appeals and compliance.

This new executive Webinar will discuss the following topics:

  1. 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.
  2. Compliant policies and practices for proper disclosures, for the patients to make informed decisions in exercising freedom of choice for utilization of OON providers, solely based on the quality and safety of the care and reputations of the providers.
  3. OIG: Fraud and abuse prevention brainstorming.  (http://oig.hhs.gov/compliance/provider-compliance-training/index.asp)
  4. DOL: About 77% of Insured Americans Purchased Out-Of-Network Coverage in Private Industry (BLS, NBS 2010, page 11 of 167): (http://avym.com/health-and-retirement-plan-provisions-in-private-industry-in-the-united-states/)
  5. PPACA & ERISA Compliant Appeals and litigation avoidance and/or support.
  6. DOL: PPACA & ERISA Claims Regulations Assistance and Complaints Webpage (https://www.askebsa.dol.gov/WebIntake/Home.aspx?submit=Submit+a+Complaint)

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.

Health and Retirement Plan Provisions in Private Industry in the United States

National Compensation Survey:
Health and Retirement Plan Provisions in Private Industry in the United States, 2010;
U.S. Department of Labor Hilda L. Solis, Secretary
U.S. Bureau of Labor Statistics
Keith Hall, Commissioner
August 2011
Bulletin 2770

Health and Retirement Plan Provisions in Private Industry in the United States PDF file
Ramifications of the Report:
According to Govt Report, over 70% of insured Americans have out-of-network (OON) coverage.

DOL: About 77% of Insured Americans Purchased Out-Of-Network Coverage in Private Industry

(BLS, NBS 2010, page 11 of 167): http://stats.bls.gov/ncs/ebs/detailedprovisions/2010/ebbl0047.pdf

The National Compensation Survey has released data on health and retirement plans in private industry for 2010. The bulletin provides updated information on health plans provisions for fee-for-service plans and health maintenance organizations, and new data on high-deductible and consumer-driven health plans. Detailed information on types and provisions of defined benefit and defined contribution retirement plans are also included. This bulletin is available at http://www.bls.gov/ncs/ebs/#bulletin_details. Additional benefits data are available on the National Compensation Survey web page at http://www.bls.gov/ncs/ebs.

 

 

U.S. Supreme Court: PPACA/ERISA pave the way to overcoming the No. 1 Health Claim Denials and Litigation issue in 2012 – Cost-Sharing War

In The Wake Of Recent Insurer Litigations, Claim Denials And Auditing Against Healthcare Providers and Patients For Alleged Deductible And Co-Insurance Waiver Practice, AVYM Offers Compliance Webinars On The Latest Supreme Court Decisions, PPACA And ERISA Regulations.

A nationwide increase in insurer litigations, claim denials and auditing against healthcare providers for alleged deductible and co-insurance waiver practices by providers, has created a need for AVYM to offer healthcare executive compliance Webinars which will include issues on the latest Supreme Court decisions, PPACA and ERISA regulations for compliance and solutions to increasing insurers national health claim denials and litigations in 2012.

AVYM Webinars will:

  1. Focus on the number one healthcare dispute right now in the U.S. against  health plans, providers and patients as well as the relevance of recent US Supreme Court decisions and their effects on claims denials, audits, and litigation of claim disputes. 77% of insured Americans under employer sponsored health plans are affected by these issues.
  2. Analyze the new federal health reform law, PPACA claim regulations, which have adopted ERISA law as the minimum claim regulations standard for all health plans which now includes individual market claims outside of Medicare
  3. Analyze and discuss ERISA claim regulation which, for the last 36 years, has provided very specific provisions regulating the “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits”, such as cost-sharing waiver practice faced by every patient and provider.
  4. Discuss the differences between compliant and non-compliant practices for waiver of cost-sharing.

In review of healthcare headline news of 2012, it is evident that the No. 1 payor and provider litigation and claim dispute issue that is now escalating to the top of the radar screen is a “deductible and co-insurance war” for all.

“While health care providers are being sued for not collecting patient deductibles in the west coast but also for collecting patient’s deductible and denied claims in the east coast, it cannot be said that health plans and insurer’s litigations are not all without merits. Nevertheless, the nationwide explosive and mass claim auditing and litigation should prompt all of us to ask one simple question: what does the Supreme Court, PPACA and ERISA regulations say about this new billion dollar question?”

Of particular importance, AVYM’s healthcare executive Webinar will have in-depth discussions on compliant cost-sharing waiver practices, along with when and why the claims can or cannot be denied for cost-sharing waivers and reductions:

  1. HHS/OIG Guidance on compliance for cost-sharing waivers and reductions: http://archive.hhs.gov/news/press/2004pres/20040219.html
  2. ERISA requires the administrator of an employee benefit plan to give participants a Summary Plan Description (SPD) and a summary of any material modifications (SMM) that are “sufficiently accurate and comprehensive to reasonably apprise [them] * * * of their rights and obligations under the plan.” (http://www.gpo.gov/fdsys/pkg/USCODE-2010-title29/html/USCODE-2010-title29-chap18-subchapI-subtitleB-part1-sec1022.htm)
  3. “The Summary Plan Description shall contain the following information: “circumstances which may result in disqualification, ineligibility, or denial or loss of benefits;” 29 U.S.C. §1022(b);
  4. The SMM must provide notice of changes in those circumstances, 29 U.S.C. 1022(a);
  5. The SPD and SMM must “be written in a manner calculated to be understood by the average plan participant,” 29 U.S.C. 1022(a);
  6. SPD and SMM must not have the effect [of] misleading, misinforming or failing to inform participants.” 29 C.F.R. 2520.102-2(b). 29 U.S.C. 1024(b).
  7. ERISA Civil enforcement: (a) Persons empowered to bring a civil action A civil action may be brought — (1) by a participant or beneficiary……(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; 29 U. S. C. §1132(a)(1)(B); (http://www.gpo.gov/fdsys/pkg/USCODE-2010-title29/html/USCODE-2010-title29-chap18-subchapI-subtitleB-part5-sec1132.htm)
  8. Recent Supreme Court decision on participant right and plan authority under ERISA, for cost-sharing disputes. Kennedy v. Plan Administrator for Dupont Savings and Investment Plan et al. (No. 07–636), 01/26/20089. “ERISA provides no exception to the plan administrator’s duty to act in accordance with plan documents. Thus, the Estate’s claim stands or falls by “the terms of the plan,” 29 U. S. C. §1132(a)(1)(B), a straight for-ward rule that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits,’ ”
  1. Latest U.S. Supreme Court decision for all ERISA claims: “Cigna v. Amara, (No. 09-804), 05/16/2011. “We conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan”. (http://www.supremecourt.gov/opinions/10pdf/09-804.pdf)
  1. PPACA & ERISA claim regulations on claim denials and appeals due to deductible and co-insurance waiver dispute and litigations. (http://www.dol.gov/ebsa/healthreform/)

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.

 

YF Corporation Nominated for 2012 White House PPACA Champions of Change Program

ERISAclaim.com Announces Its Nomination of YF Corporation for the White House 2012 PPACA Champion, to be Honored for Work in Educating Others About the New Health Care Law to Raise Awareness About the Benefits of the Patient Protection & Affordable Care Act (PPACA).
>> download a printable PDF file of the article

“No one deserves to be honored in that area more than YF Corporation.”

On Feb. 15, 2012, Dr. Jin Zhou, of ERISAclaim.com announced his nomination of Vincent Flores and YF Corporation for the 2012 White House PPACA Champions of Change program, honoring their work in educating others about the new health care law in order to raise awareness about the benefits of the Patient Protection & Affordable Care Act (PPACA). Dr. Jin Zhou was encouraged by the White House Office of Public Engagement to nominate a PPACA champion to go to the White House to be honored for their work, for “educating their community about the new health
care law and helping people take advantage of the benefits from the law”. Vincent Flores and YF Corporation are nominated for their effort and success over the past two years in educating the healthcare provider community about PPACA claims regulations with free PPACA Webinars and Certified PPACA Claim Specialists programs.

“I submitted Vincent Flores and YF Corporation for the 2012 nomination of the “PPACA Nobel Prize” as the Ultimate champion in teaching others about the benefits of ACA. No one deserves to be honored in that area more than YF Corporation, as intended by the White House for 2012,” said Dr Jin Zhou, President of ERISAclaim.com, Hanover Park, IL.

“Vincent Flores and YF Corporation have been highly regarded in the Southern California provider community for educating the healthcare industry about the new healthcare law. This has allowed many providers to take advantage of the benefits within the new healthcare law by doing compliant and effective PPACA & ERISA appeals for all improperly denied healthcare claims, and to legitimately and effectively win more healthcare coverage and access for more patients. In addition, the education YF Corporation has done can be seen as an important way to advocate for Patients’ Bill of Rights, as intended by Congress”, according to Dr. Zhou.

According to the White House Office of Public Engagement, all nominations must be submitted by midnight on February 16th of 2012, (http://www.whitehouse.gov/webform/white-house-champions-change-affordable-care-act):

“White House Champions of Change”:

Affordable Care Act

The White House Champions of Change program highlights the stories and examples of citizens across the country that represent President Obama’s vision of out-innovating, out-educating, and out-building the rest of the world through projects and initiatives that move their communities forward. …… This year we are seeking recommendations of individuals and organizations that are educating others about the new health care law to raise awareness about the benefits of the Affordable Care Act.

Tell us about an individual or organization who is educating their community about the new health care law and helping people take advantage of the benefits from the law. Use the form below to nominate a champion to come to the White House to be honored for his/her work.

Please submit nominations by midnight on February 16th by utilizing this form.”

In order to nominate for “2012 PPACA Champion of Change”, one must describe in part:

“How has your nominee’s work helped educate people about the new healthcare law or take advantage of the benefits within the new healthcare law?”

Dr Zhou of ERISAclaim.com made his nomination for the following reasons, in part:
YF Corp has continued to advocate, within the healthcare industry, for continued education of the new healthcare reform law in order to take advantage of the benefits within the claims regulations by doing effective and compliant PPACA & ERISA appeals for all improperly denied healthcare claims, thus providing patients more access to health care benefits and ensuring their health care rights, as intended by Congress;

“PPACA provides 190 million Americans with much needed health coverage and appeal rights in order to access to the covered healthcare services. With new powerful PPACA claims regulations and enforcement penalties, the provider’s PPACA appeals for all improperly denied claims are the most important steps in advocating for real coverage and access to healthcare when patients need it the most, as intended by Congress,” said Dr. Zhou.

Located in Los Angeles, CA, YF Corporation is a leading multi-facet healthcare solution company with dedicated appeals specialists in billing, coding, revenue recovery services, consulting, claims review and compliance. With many physicians and ambulatory surgical centers as clients statewide, YF Corporation has been fighting for the rights
of consumers and providers by appealing denials, partial denials and overpayment requests, with ERISA training from ERISAclaim.com since 2001. YF Corporation offers FREE webinars to keep you updated on new Federal Court decisions, PPACA claims regulation enforcement and how these directly affect reimbursements.

CIGNA Corp. v. Amara

No. 09-804, 2011 WL 1832824 (S. Ct. May 16, 2011)
Ramifications of the Supreme Court Decision:

http://www.supremecourt.gov/opinions/10pdf/09-804.pdf

On May 16, 2011 The Supreme Court  issued a major ERISA remedies decision in CIGNA Corp. v. Amara, No.09?804, 2011 WL 1832824, holding that ERISA’s authorization of suits by pension plan participants “to recover benefits due” or to “enforce [their] rights” under the terms of the plan (ERISA section 502(a)(1)(B)) is not authority for courts to enforce the terms of a summary plan description (SPD) or to revise the plan to conform it to representations made in the SPD. More importantly, however, the Court appeared to use the case to signal, in lengthy dicta, that it has rethought the scope of “other appropriate equitable relief” available under ERISA’s catch-all remedial provision (ERISA section 502(a)(3)) and now is prepared to allow plan participants to recover “monetary ‘compensation’” and “make-whole” relief against fiduciaries for breaches of duty, something the lower courts have long construed earlier Supreme Court cases to preclude.

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The Court rejected CIGNA’s argument that plan beneficiaries must always show detrimental reliance to obtain relief for violations of the notice provisions.

Additionally, the court stated “Thus, to obtain relief by surcharge for violations of §§102(a) and 104(b), a plan participant or beneficiary must show that the violation caused injury, but need show only actual harm and causation, not detrimental reliance.”

“In the present case, it is not difficult to imagine how the failure to provide proper summary information, in violation of the statute, injured employees even if they did not themselves act in reliance on summary documents—which they might not themselves have seen—for they may have thought fellow employees, or informal workplace discussion, would have let them know if, say, plan changes would likely prove harmful”

Citing Mertens v. Hewitt Associates, 508 U.S. 248 (1993), the Court looked at traditional equitable remedies and concluded as follows:

  • First, that reformation was such a remedy in courts of equity. Because the power to reform contracts was available in equity to prevent fraud or mistake, it likewise is available under Section 502(a)(3).
  • Second, that equitable estoppel was a classic remedy in equity, and thus also available under Section 502(a)(3). Third, that equity courts “possessed the power to provide relief in the form of monetary ‘compensation’ for a loss resulting from a trustee’s breach of duty, or to prevent the trustee’s unjust enrichment.” Known as “surcharge,” this remedy “extended to a breach of trust committed by a fiduciary encompassing any violation of a duty imposed upon that fiduciary.”

The Supreme Court’s decision will have many practical implications for plan sponsors, fiduciaries, and participants in the coming years. Here are two:

  • First and foremost, it represents the first time the Supreme Court has signaled that “compensatory,” “make-whole” monetary relief is available under ERISA’s catch-all provision, Section 502(a)(3). For nearly 20 years, the lower courts overwhelmingly have construed Mertens and later Supreme Court decisions to preclude monetary relief under Section 502(a)(3) against fiduciaries in nearly all circumstances. CIGNA now appears to invite participants to challenge and remake that law.
  • Second, the impact of the Supreme Court’s holding that the terms of an SPD cannot be enforced as if they were plan terms will have to be sorted out in future litigation. The decision appears to overturn the rule adopted by many circuits, including at least the Second, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth and Eleventh, that an SPD with language more favorable to participants than the plan automatically controls when there is a conflict.

The McCravy Amicus Brief is in support of a petition for rehearing or rehearing en banc.

AS CIGNA NOW MAKES CLEAR, APPROPRIATE EQUITABLE RELIEF UNDER ERISA SECTION 502(a)(3) INCLUDES RELIEF THAT MAKES INJURED PARTICIPANTS AND BENEFICIARIES WHOLE AND THUS PERMITS THE COURT TO SURCHARGE METLIFE FOR THE INSURANCE PROCEEDS THAT MCCRAVY WOULD HAVE RECEIVED BUT FOR THE ALLEGED BREACHES OF FIDUCIARY DUTY

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Franco v. Connecticut General Life Ins. Co.

Case 2:07-cv-06039-SRC–PS
Court Ruled Against CIGNA & UHC UCR Class Actions by Out-of-Network Providers On Poor ERISA Assignment.
Franco v. Connecticut General Life Ins. Co.PDF file
Ramifications of Court Decision:

  1. The court concluded that standard industry provider assignment of benefits are only limited assignment under ERISA and legally useless, but a complete ERISA assignment of benefits is required for all ERISA appeals and lawsuits by third-party providers.
  2. What exactly does an ERISA complete Assignment of Benefits mean?
  3. How to secure a valid and complete ERISA compliant Assignment of Benefits?
  4. Why is ERISA Assignment of Benefits Form required for both in and out of network providers?

“At best, the allegations provide only the most ambiguous and conclusory information about what the purported assignments entail. At worst for Provider Plaintiffs, they indicate that the assignments were limited to a patient’s assigning his or her right to receive reimbursement from CIGNA for the covered portion of the service bill, which in no way can be construed as tantamount to assigning the right enforce his or her rights under the plan. The Court cannot conclude, based on the information supplied in the Complaints, that the assignments encompass a CIGNA-insured’s claim to benefits, such that any of the Provider Plaintiffs can legally be deemed a “participant or beneficiary” of his or her patient’s ERISA health plan. Simply put, Provider Plaintiffs have not met their burden of demonstrating that they have derivative standing to sue under ERISA.”

Merigan v. Liberty Life Assurance Company of Boston

Case 1:09-cv-11087-RBC Document 47
Filed 11/30/11 United States District Court Massachusetts
Merigan v. Liberty Life Assurance Company of Boston PDF file
Ramifications of Court Decision:

Claim Appeal 2½ Years After Denial Not Untimely Because of Amara.

“Further, we cannot agree that the terms of statutorily required plan summaries (or summaries of plan modifications) necessarily may be enforced (under § 502(a)(1)(B)) as the terms of the plan itself. For one thing, it is difficult to square the Solicitor General’s reading of the statute with ERISA § 102(a), the provision that obliges plan administrators to furnish summary plan descriptions. The syntax of that provision, requiring that participants and beneficiaries be advised of their rights and obligations ‘under the plan,’ suggests that the information about the plan provided by those disclosures is not itself part of the plan. See 29 U.S.C. § 1022(a). Nothing in § 502(a)(1)(B) (or, as far as we can tell, anywhere else) suggests the contrary.”

*****
[W]e conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan for purposes of § 502(a)(1)(B).