All posts by mflores

“The U.S. Department of Justice has announced Tampa, Fla.-based WellCare Health Plan will pay $137.5 million to the federal government and nine states to settle four lawsuits alleging the payor violated the False Claims Act.

The suits claim WellCare committed a number of schemes to submit false claims to Medicare and Medicaid programs. Allegations include WellCare inflating the amount it claimed to spend on medical care, knowingly retaining overpayments it received from Florida Medicaid for infant care and falsifying data to misrepresent patient conditions and treatments.

The $137.5 million settlement will be divided among the federal government and nine states: Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Missouri, New York and Ohio. Sean Hellein, a financial analyst formerly employed by WellCare whose qui tam complaint initiated the federal investigation, will receive approximately $20.75 million.

Recently, in a separate ongoing case:

United States District Court of New Jersey denied UnitedHealth’s (UHC) motion, in its entirety as to all claims, to dismiss the providers’ ERISA class action alleging that UHC’s wrongful overpayment recoupment is in violation of federal law.  The insurance practice of overpayment recoupment has been and is becoming a larger legal and financial challenge for health plans, healthcare providers and patients to overcome. Almost all health care providers have been affected by an overpayment dispute over the past few years and according to industry estimates, more than 50% of the $2.6 trillion in annual US healthcare expenditure is subject to overpayment dispute.

What does this mean to overpayment request by payors?

In accordance with recent developments, Avym Announces 2012 Free Webinars And Plan Assets Recovery Programs To Assist Self-Insured Health Plans Recover Hundreds Of Millions Of Dollars In Plan Assets From Successful TPA’s Overpayment Recovery.  More Than 60% Of TPA Recovered Money Originated From Self-Insured Plans And Should Be Returned To Self-Insured Health Plans Under New DOL Contributory Plans Criminal Project.

On March 30, 2012, Federal Court Denied UnitedHealth’s (UHC) Motion, In Its Entirety As To All Claims, To Dismiss Providers’ ERISA Class Action, Alleging UHC’s Wrongful Overpayment Recoupment In Violation Of ERISA. Avym Offers Webinars To Examine The Legal Impact Of This Decision for All Payers and Providers.

On March 30, 2012, United States District Court of New Jersey denied UnitedHealth’s (UHC) motion, in its entirety as to all claims, to dismiss the providers’ ERISA class action alleging that UHC’s wrongful overpayment recoupment is in violation of federal law, ERISA. Avym now offers executive webinars to examine the profound legal impact for all providers and payers.

The Court case info: Premier Health Center, PC, et al. v. Unitedhealth Group, et al., Case #: 2:11-cv-00425, United States District Court District of New Jersey, Filed 03/30/12.

The insurance practice of overpayment recoupment has been and is becoming a larger legal and financial challenge for health plans, healthcare providers and patients to overcome. Almost all health care providers have been affected by an overpayment dispute over the past few years and according to industry estimates, more than 50% of the $2.6 trillion in annual US healthcare expenditure is subject to overpayment dispute.  Additionally, more than 10% of any previous and future reimbursements are subject to overpayment recoupment by the payers in both private and public sectors.

According to the Court document, the healthcare provider and their association plaintiffs are challenging defendants’ practices of improperly recouping previously paid health care benefits from providers without complying with procedural protections under ERISA, “Plaintiffs allege that United “took steps to coerce the Individual Plaintiffs and other Class members to return the alleged overpayments, including by withholding payments from new and unrelated services and applying them to the alleged debt, or by filing invalid lawsuits seeking to compel repayment.” The Defendants seek dismissal of Plaintiffs’ Amended Complaint for lack of standing to sue and for having failed to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). The Court “ORDERED that UnitedHealth Group, UnitedHealthcare Services, Inc., and OptumHealth Care Solutions, Inc.’s motion to dismiss—(D.E. 31)—is hereby DENIED as to all claims”, but granted defendants’ motions to dismiss claims, without prejudice, against two subsidiary companies of UHC.

The case factual background was described in the Court document:

“After performing its services, pursuant to the assignment of benefits form, Premier submits a claim to United who will then make payment to Premier on the claim. Occasionally, United will engage in post-payment audits of benefit payments. Following the post-payment audit process, United determined that they had erroneously made overpayments to the Plaintiffs and demanded repayment. Plaintiffs allege that United “took steps to coerce the Individual Plaintiffs and other Class members to return the alleged overpayments, including by withholding payments from new and unrelated services and applying them to the alleged debt, or by filing invalid lawsuits seeking to compel repayment”.

From the court document: “Plaintiffs further allege that many of the United Plans at issue are governed by ERISA, “which establishes strict rules and procedures that United or other entities that administer ERISA plans must comply with.” Furthermore, “ERISA sets forth specific steps that must be followed when an insurer such as United makes an ‘adverse benefit determination’ by denying or reducing benefits, including by providing a ‘full and fair review’ of the decision.” “By making a retroactive determination that a previously paid benefit was, in fact, paid improperly, an insurer makes an adverse benefit determination under ERISA.” Plaintiff avers that “United has violated ERISA by making its retroactive adverse benefit determinations without complying with ERISA[’s] requirements.”

On January 24, 2011, Plaintiffs filed a complaint in the United States District Court for the District of New Jersey.  On April 22, 2011, YF Corporation’s ambulatory surgical center (ASC) client, Beverly Hills Surgical Center (BHSC), as a Named Class Plaintiff, filed a class-action in federal court against UnitedHealth Group for alleged ERISA violations through its abusive overpayment recoupment practice.  With assistance from YF Corporation, BHSC, which represents all ambulatory surgical center facilities, is the first ASC facility provider in the nation to combat abusive overpayment recoupment practices by filing an ERISA class action against UnitedHealth Group, the largest health insurer in America.

“On April 22, 2011, Plaintiffs filed an Amended Complaint, which is the subject of Defendants’ United and Health Net motions to dismiss. The parties have submitted their respective briefs and the Defendants’ motions are now ripe for this Court’s adjudication.”

The Court denied the Motion to Dismiss filed by United in its entirety, including denying UHC’s anti-assignment argument and upholding the standing of all providers’ national and state association plaintiffs: “In light of the above, the Court finds that based upon Defendants’ course of conduct with Plaintiffs, Defendants have waived any right to enforce the anti-assignment provision. Therefore, Plaintiffs have met their burden to establish standing to sue under ERISA.”

“Accordingly, the Court finds that the Associations have standing to bring ERISA claims on behalf of their individual members.”

“ORDERED that UnitedHealth Group, UnitedHealthcare Services, Inc., and OptumHealth Care Solutions, Inc.’s motion to dismiss—(D.E. 31)—is hereby DENIED as to all claims.”

If the Court denied each and every legal argument by UHC in this class action for overpayment recoupment, what does this mean to every overpayment request by every payer?

To find out more about PPACA/ERISA 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.

Avym Announces 2012 Free Webinars And Plan Assets Recovery Programs To Assist Self-Insured Health Plans Recover Hundreds Of Millions Of Dollars In Plan Assets From Successful TPA’s Overpayment Recovery.  More Than 60% Of TPA Recovered Money Originated From Self-Insured Plans And Should Be Returned To Self-Insured Health Plans Under New DOL Contributory Plans Criminal Project.

Avym announces 2012 free webinars and plan assets recovery programs designed to assist self-insured health plans potentially recover hundreds of millions of dollars in plan assets from successful TPA overpayment recovery efforts.  According to industry estimates, TPA successful overpayment recovery reaches into the billions of dollars nationwide over the past 5 to 7 years.

More than 60% of national TPA recovered money initially originated from self-insured plans and should be returned to those same self-insured health plans.  Every plan fiduciary has statutory duties to safeguard plan assets: to audit all alleged overpayments by TPA’s and to recover every dollar in plan assets when there were known successful overpayment recoveries by the TPA’s.  Avym offers this unique and powerful Plan Assets Recovery Program for the purpose of compliance assistance under new DOL Contributory Plans Criminal Project.

02/23/2011: DOL EBSA News Release:

Morrow, Ohio-based third-party plan administrator pleads guilty to embezzlement of $1 million from retirement plan clients [02/23/2011]

“The third-party administrator to 56 employee benefit plans — most covered by the Employee Retirement Income Security Act — located throughout Ohio and several other states pleaded guilty to one count of embezzlement of $1 million in assets from 12 retirement plans.”  

“This defendant’s theft of employee benefit assets jeopardized the retirement security of workers covered by these plans. This crime is particularly egregious in light of the duty of plan officials and service providers to protect plan assets from abuse,” said Phyllis C. Borzi, assistant secretary of the Labor Department’s Employee Benefits Security Administration.”  http://www.dol.gov/opa/media/press/ebsa/EBSA20110228.htm

During the last 7 years, there have been industry wide reports of successful healthcare anti-fraud and overpayment recovery in the billions of dollars.  On November 16, 2010, U.S. Labor Department announced nationwide enforcement actions to protect millions of dollars in worker retirement and health benefits. http://www.dol.gov/ebsa/newsroom/2010/10-1614-NAT.html

DOL EBSA: Contributory Plans Criminal Project Fact Sheet States:

“Millions of American workers share in the costs of employee benefits by contributing to employer sponsored retirement and health benefit plans. In 2010, the Department of Labor’s Employee Benefits Security Administration (EBSA) initiated the Contributory Plans Criminal Project (CPCP) to combat criminal abuse of contributory benefit plans.” http://avym.com/dol-ebsa-contributory-plans-criminal-project-fact-sheet/

It is simple and clear -when a contributory benefit plan initially overpays millions of dollars due to TPA’s errors, and several years later, the same TPA recovers said overpayment in its anti-fraud operation, such recovered money should be returned to the self-insured health plans, and must not be converted or embezzled into the TPA assets.

Avym Webinars are designed to assist self-insured health plans comply with ERISA fiduciary laws by safeguarding contributory plan assets, and to assist with DOL EBSA Contributory Plans Criminal Project:

“EBSA works closely with other federal, state, and local agencies to enforce laws safeguarding contributory plan assets. Criminal prosecution of individuals who abuse their authority or control over contributory plans can result in severe criminal penalties, including imprisonment. Those convicted of embezzling or misappropriating moneys intended to fund pension plans or pay health benefits typically are barred from providing services or acting in any capacity for a period of 13 years.” http://avym.com/dol-ebsa-contributory-plans-criminal-project-fact-sheet/

Avym Webinars are free to all self-insured ERISA plans.  Webinars are designed to review industry facts and applicable federal laws, and explain how and why a self-insured ERISA health plan should be refunded by its TPAs for recouped overpayment money.  These free webinars are scheduled for 30 minutes each session.  To schedule a free webinar, or for more information contact us at: info@avym.com

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.

Contributary Plans Criminal Project

U.S. Department of Labor

Employee Benefits Security Administration

October 2011

Millions of American workers share in the costs of employee benefits by contributing to employer sponsored retirement and health benefit plans. In 2010, the Department of Labor’s Employee Benefits Security Administration (EBSA) initiated the Contributory Plans Criminal Project (CPCP) to combat criminal abuse of contributory benefit plans.

Court Rules Against Provider for Faulty Assignment, Even With PPO Contract

Federal Court Decision on March 02, 2012 Rules Against PPO Hospital for Faulty ERISA Assignment: BCBS PPO Contract Is Not an ERISA Assignment, However Court Denies Plan’s Anti-Assignment Argument.

This case illustrates three issues of significant importance to all ASC providers.   First, the courts have again addressed the matter of standing and the importance of a complete, ERISA/PPACA compliant assignment for all ASC providers seeking ERISA/PPACA appeals and litigation.  Second, PPO contracted ASC providers are not granted automatic standing for appeal and litigation purposes.  Third, the court rejected the Plan’s anti assignment argument; anti assignment clauses are not enforceable with a complete valid ERISA assignment.

Every ASC in the country has had a claim denied.  If an ASC attempts to appeal any kind of denial such as UCR, medical necessity, policy exclusion or even overpayment request, that ASC will need a complete assignment.  If a claim denial is not resolved, and a court action is necessary, ASC’s will absolutely need a complete assignment.  ASC’s cannot sue in court, or even appeal denied claims, unless they have a complete assignment.  Unfortunately, the assignment most ASC’s, and physicians use is NOT a complete assignment.  This court case highlights the necessity for ASC owners, managers and consulting companies to review current patient assignments, as well as obtain complete assignments regardless of whether the ASC is in or out of network.

The court case info: Medical University Hospital v. Oceana Resorts, United States District Court, D. South Carolina, Charleston Division, March 2, 2012.

According to the Court document, the plaintiff  PPO hospital “Medical University Hospital Authority /Medical Center (MUSC) argued that as a PPO provider they are not required to obtain an ERISA assignment or otherwise has automatically obtained an ERISA Assignment from its PPO contracting or participation:

“First, MUSC argues that the Plan implicitly assigned benefits to all network providers based on the payment structure laid out in the Plan, and therefore, MUSC did not even need the Consent Form to obtain derivative standing. Under the terms of the Plan, a participant need only pay the deductible to a network provider from whom he or she obtains medical services. The network provider is then required to file its claim for those services with the TPA. The Plan states that the network provider will receive the scheduled amount as payment in full for the medical services. The terms of the Plan indicate that generally some party other than the participant will reimburse the Plan for the claims. Defendants agree that MUSC is a network or preferred provider.”

The Court rejected plaintiff’s PPO ERISA Assignment argument and stated that ERISA assignment has to come from a patient, not Plan or PPO network:

“MUSC did not claim that it had standing as a third-party beneficiary of the Plan; nor could it have successfully pursued this argument. The only Circuit to squarely address this issue held that “ERISA does not countenance third-party beneficiary claims,” and found, therefore, that a hospital could not have independent standing without an enforceable assignment from the participant. Dallas Cnty. Hosp. Dist. v. Assoc.’s Health & Welfare Plan, 293 F.3d 282, 289 (5th Cir. 2002). Thus, without a valid assignment from a beneficiary or a participant, MUSC could not have obtained derivative or direct standing.”

The Court also ruled for the self-insured ERISA plan because the plaintiff’s alleged ERISA assignment only covers an insurance policy not self-insured ERISA plan:

“Additionally, the Consent Form, which was prepared by MUSC, does not cover assignments to self-funded employee benefits plans. The Consent Form assigns benefits due under “any insurance policy.” The assignment provides examples of types of coverage which would be assigned, all of which are types of insurance. Section 1144(b)(2)(B) of ERISA forbids states from deeming an employee benefits plan “to be an insurance company or other insurer . . . or to be engaged in the business of insurance.” See also Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 372 (2002) (“ERISA’s `deemer’ clause provides an exception to its saving clause that prohibits States from regulating self-funded plans as insurers.”). The Fourth Circuit, therefore, has held that “[t]hird-party administrator[s], [are] not . . . insured[s].” Sheppard & Enoch Pratt Hosp., 32 F.3d at 123 n.1; but see Wheeler, 62 F.3d at 638 (discussing self-funded “ERISA health insurance plan” and applying principles of insurance law).”

Interestingly, for some unknown or perhaps strategic reason, the Complaint did not include the language of the alleged assignment or attach the Consent Form.  The Complaint also did not include information regarding any anti-assignment provision in the Plan document.  However, the Court rejected ERISA plan’s anti-assignment argument:

“Because it is possible for a medical provider to acquire derivative standing through an assignment of benefits by a plan participant, MUSC’s Complaint states a plausible claim for relief, and therefore, defendants’ motion to dismiss is denied”.

Due to the lack of or faulty ERISA Assignment, the Court finally ruled for the self-insured ERISA plan:

“For the foregoing reasons, the court DENIES defendants’ motion to dismiss, but GRANTS their motion for summary judgment.”

This court decision provides a clear roadmap for all PPO and Non-PPO ASC providers on the requirements of valid, complete assignments.  Longstanding traditional limited assignments are insufficient for ERISA appeals and litigations.  ASC’s must follow this roadmap through innovative and practical solutions with proactive ERISA compliant assignments and appeals in accordance with applicable federal ERISA and PPACA laws.

Many ASC’s are under the misconception that: (1) joining a PPO or HMO network contract automatically grants providers ERISA rights and federal regulations law governing most commercial health claims; (2) Federal ERISA regulations don’t regulate or are not relevant to PPO or HMO network providers.  Nothing could be further from the truth.  This court decision is a wakeup call for all contracted and non-contracted ASC providers.

AVYM advocates for education and understanding and provides in-depth analysis of this new in-network litigation as well as other issues affecting health care professionals with ongoing webinars.

To find out more about PPACA Claims and Appeals Compliance Services from AVYM please contact us at info@avym.com

Public opinion appears to be moving in favor of President Obama’s Healthcare Reform Act, PPACA.  A new poll by the Kaiser Family Foundation shows that a majority of the public opposes repealing the entire law, which includes popular provisions such as allowing children to stay on their parents’ health insurance until age 26 and prohibiting insurance companies from discriminating against people with pre-existing conditions.  The Kaiser survey found that 54 percent of respondents believe the law should be expanded or kept as is, while 37 percent want it repealed completely.

“In terms of next steps for the ACA, just over a third of Americans would like to see it expanded (35 percent, the highest point in Kaiser tracking), two in ten (19 percent) want to leave it in its current form, and similar shares would like to replace it with a Republican alternative (18 percent) or repeal it outright (19 percent).”

There are some interesting results in the latest Kaiser Family Foundation poll, among them:

• 63 percent of Americans support a new federal requirement that plans include no-cost birth control
• Americans that think their family will be worse off under health reform dropped to 25 percent
• 70 percent of Americans say “Medicare should continue as it is today, with the government guaranteeing seniors health insurance and making sure that everyone gets the same defined set of benefits,

Interestingly, in regards to the budget and cost controls, the poll found that “despite the fact that many policy experts are deeply focused on the need to rein in the nation’s entitlement spending, the survey confirms the conventional wisdom that convincing a majority of the public to make any change to Medicare is going to be difficult”

Kaiser Health Tracking Poll-Feb-2012