Federal Court Cuts Down Aetna: Rules “Aetna’s Cross-Plan Offsetting Violates ERISA”

On June 21, 2021, in an unpublished decision, the United States District Court for the District of NJ rules “Aetna’s Cross-Plan Offsetting Is Unlawful.” Court also concludes Aetna’s state-law-based justifications for its cross-plan offsetting are preempted by ERISA.

This watershed case is the culmination of many cases we have written about over the years, in regards to “Cross-Plan Offsets”. United States District Judge, Brian R. Martinotti, put the final nail in the coffin with respect to the health insurance industry practice of cross plan offsetting with his extraordinary ruling:

“Aetna’s Cross Plan Offsetting violates ERISA”

Cross-plan offsetting is a method insurers use to pull back alleged overpayments related to patients from one plan by reducing or eliminating payments related to patients from a different self-insured plan. Alleged overpayment recoupments and offsets (post payment adverse benefit determinations) are the nation’s No.1 medical claim denial, as insurers and TPA’s increasingly use post-payment audits as a means to recover what they allege to be prior overpayments of health care benefits, particularly when other self-insured health plan assets are involved. According to industry estimates and court records from a different case, national insurance carriers collect Billion$$ a year in offset activity.

As we have written about before, the No. 1 health care claims denial in the country is “overpayment” recoupments through “Cross-Plan Offsets”; in the same way,

The No.1 hidden cost for Self-Insured health plans, is “Overpayment” recoupment through “Cross-Plan Offsets” and subsequent embezzlement of plan assets. 

Accordingly, all self-insured health plans nationwide should look to recover Billion$$ in refunds from the past decade of successful plan assets TPA/ASO anti-fraud recoupments and managed care savings in the private sector.

“It can be argued that the failure to safeguard plan assets is definitely a breach of fiduciary duty, under ERISA, and now the courts have provided a legal formula for plan assets recovery” says Mark Flores, Vice President of Avym Corp. and national healthcare claims expert.

As the DOL ramps up audits and enforcement actions against health plan claims and appeals, every ERISA self-insured health plan sponsor or fiduciary should keep in mind that they are required to monitor TPA/ASOs successful overpayment recoveries and managed care savings, in order to determine whether:

  • any of the billions of dollars of successful TPA/ASO overpayment recoupments and offsets nationwide each year are ERISA plan assets;
  • all TPA/ASOs must refund all ERISA plan assets as ERISA prohibits all self-dealings;
  • all self-insured plan administrators are liable for fiduciary breach in failing to safeguard or recover plan assets.

Case Info: Lutz Surgical Partners, PLLC, et al. vs Aetna, Inc., et al., Case No.: 3:15-cv-02595, (BRM) (TJB) Document #: 202, Filed: 06/21/21, in the United States District Court for the District of New Jersey.

This landmark case, in conjunction with the relevant US Supreme Court Montanile decision, potentially rewards trillions of dollars in plan assets recovery for all self-insured ERISA plans nationwide, from cross plan overpayment recoupments and offsets done by plan TPAs. 

Aetna Conducted Cross-Plan Offsetting

Cross-plan offsetting refers to “the practice of not paying a benefit due under one plan in order to recover an amount believed to be owed to another plan because of that other plan’s overpayment.”

According to the court records, “A typical cross-plan offsetting proceeds as follows. “[O]ut-of-network providers . . . provided services to . . . a patient who was insured under a Plan A administered by” a plan administrator…The “providers submitted claims to” the plan administrator and “received payment for those claims from the Plan A.”…The providers “were later informed by [the plan administrator] that they had been paid too much,” but the providers “refused to return the alleged overpayment.”…The plan administrator “responded by recouping the disputed overpayment through cross-plan offsetting.”…“In other words, when [the plan administrator] learned that [the providers] had submitted a subsequent claim regarding . . . a different patient who was insured under . . . a Plan B,” the plan administrator “did not pay for those claims by transferring money to” the providers….“Instead, [the plan administrator] purported to pay for those claims by cancelling debt that [the providers] allegedly owed to the Plan A.”

Aetna’s Cross-Plan Offsetting Is Unlawful

According to the decision, “Finally, even if Plan A, Plan B, the PGA, and the NRA permit cross-plan offsetting, they cannot circumvent ERISA requirements. Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 422 (2014)) (quoting Cent. States, Se. & Sw. Areas Pension Fund, 472 U.S. 559, 568 (1985)) (“[T]rust documents cannot excuse trustees from their duties under ERISA.”); see also In re SunTrust Banks, Inc. ERISA Litig., 749 F. Supp. 2d 1365, 1374 n.11 (N.D. Ga. 2010) (quoting Kuper v. Iovenko, 66 F.3d 1447, 1457 (6th Cir. 1995)) (“[A] fiduciary may only follow plan terms to the extent that the terms are consistent with ERISA.”); Williams v. Rohm & Haas Pension Plan, 497 F.3d 710, 714 (7th Cir. 2007) (“The [p]lan cannot avoid that which is dictated by the terms of ERISA.”); La Barbera v. J.D. Collyer Equip. Corp., 337 F.3d 132, 136 (2d Cir. 2003) (“ERISA of course trumps the collective bargaining and [t]rust agreements in the case of a conflict.”). In conclusion, Aetna’s cross-plan offsetting is prohibited by ERISA.”

ERISA Overrides Aetna’s State Law Justifications for its Cross-Plan Offsetting

The court also ruled that ERISA overrides Aetna’s state law justifications for its cross-plan offsetting. According to the court records, Aetna’s state law counterclaims were also pre-empted by ERISA. Aetna requested a motion to set-off, which allows entities that owe each other money to apply their mutual debts against each other. However the court denied Aetna’s request reasoning “Aetna has not yet established the existence of mutual debts between the parties, which precludes granting a motion to setoff at this stage.”

Finally, the court declined Aetna’s request to construe Aetna’s counterclaims as ERISA claims, reasoning, “Although legal claims can be pled in the alternative, a party cannot use summary judgment briefing as a way to inject new legal theories into a case…Here, Aetna’s proposal to recast its state law counterclaims as ERISA ones is essentially a request to introduce new legal theories or claims, which is improper at this stage.”

Over the past decade, Avym has closely followed decisions from the Supreme Court as well as federal appeals courts on ERISA prohibited self-dealing against ERISA plan TPA’s for managed care savings. These new ERISA embezzlement cases are just the initial impact of the court’s Hi-Lex decisions.

This lawsuit, in particular, should serve as a warning and wake up call for all Plan Administrators to continually monitor their TPAs.

This monitoring should be done in accordance with the Plan Administrator’s statutory fiduciary duties and to discharge its duties with respect to a plan solely in the interest of the participants for the exclusive purpose of providing benefits to them.

Avym Corp. has been at the forefront and advocated for ERISA plan assets audit and embezzlement recovery education and consulting. Now with the Supreme Court’s guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars on behalf of hard-working Americans. To find out more about Avym Corporation’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs click here.

CIGNA DOES NOT FOLLOW THE LAW, MEDICAL PROVIDERS TELL FEDERAL COURT

Medical Providers Fire Back At Cigna’s Motion, Telling The Judge That “Cigna Does Not Follow The Law, And It Misrepresents How It Actually Administers The Plans.”

In the Reply Brief of Plaintiffs Advanced Gynecology and Laparoscopy of North Jersey, et al v. Cigna Health and Life Insurance, Medical Providers allege that Cigna appears to not only ignore Plan and legal requirements of the Self-Insured Health Plans which it administers but also employs multiple schemes to pay substantially less for covered charges already acknowledged as accepted and processed under the Plan terms, ultimately improperly shifting the financial burden to the patients, according to court records.

Cigna shifts financial responsibility for covered expenses onto the backs of patients, their employers, and Plaintiffs, while Cigna’s profits grow.”

In this case, which we have written about before, a group of out-of-network Medical Providers sued Cigna for RICO and ERISA violations, alleging CIGNA accepts the out-of-network provider claims at the full billed charges and requests the same amount from the corresponding Self-Insured Health Plans. However, instead of paying the Provider or member, CIGNA hires a Repricing Company to try and negotiate a reduction.

The Providers further allege that if they refuse to negotiate, CIGNA pays the claim at an exorbitantly low level but appears to keep the difference between what was removed from the Self-Insured Health Plan and what was paid to the Providers. In an attempt to conceal this from both patients and Self-Insured Health Plans, CIGNA issues Electronic Remittance Advice (ERA) or paper Explanation of Benefits forms (EOB) misrepresenting the claim balance, or the difference between what was removed from the Plan and paid to the Providers, as a “Discount” to the members. The Subscriber EOBs certify the member is not responsible for the claim balance, simultaneously; the Provider ERAs represent the claim balance to the Providers, as a member liability or “Amount Not Covered”. The suit also alleges that CIGNA’s claims process for out-of-network claims, including the Cigna Claims, violates the “HIPAA standard transaction rules under 45 C.F.R. § 164”, by using incorrect “45” coding combinations”.

Case info: Advanced Gynecology and Laparoscopy of North Jersey.et. al. v. Cigna Health and Life Insurance; Case Number: 2:19-cv-22234 in the United States District Court for the District of New Jersey, Filed December 31, 2019.

Cigna filed a Motion to Dismiss on May 06, 2020. The Medical Providers filed this reply to Cigna’s motion on July, 24, 2020: Reply brief of Plaintiffs Advanced Gynecology and Laparoscopy of North Jersey, et al v. Cigna Health and Life Insurance; 2:19-cv-22234; Doc 54, filed 7/24/2020.

According to the Providers, Cigna’s main argument is that the Health Plans do not entitle claims reimbursement of “100% of billed charges”. Indeed, that argument consumes much of Cigna’s 45-page motion, where “Cigna repeats this assertion forty times in its forty-five page brief.”

In rebuffing the argument, Providers tell the court Cigna mischaracterizes the Amended Complaint, explaining, “The Amended Complaint states clearly that Plaintiffs are entitled to reimbursement of “up to” 100% of the fees incurred by their Subscriber patients. “Up to” 100% plainly means Plaintiffs may be entitled to 100% reimbursement for some patients and some procedures, but may be entitled to less than 100% reimbursement for some patients and some procedures.”

The Providers further argue that Cigna misstates some claims and completely ignores others and has not actually responded to the detailed descriptions and numerous exhibits in the Amended Complaint that purport to show how Cigna fraudulently administers the Health Plan terms. Instead, Providers argue Cigna does not attack the Provider’s claims as pled because Cigna “lacks ammunition for that fight”; and Cigna’s own motion raises “factual disputes that can only be resolved after full discovery” and does not provide a basis to dismiss claims before such time.

According to court records, Cigna receives claims for reimbursement from out-of-network Providers and proceeds to draw down the full amount (Billed Charges) of the Provider’s claims from the trust funds of Cigna Administered Plans. However, instead of remitting the entirety of the funds to the Providers, Cigna remits only a fraction to the Providers and retains the rest for “impermissible purposes”, in violation of the terms of the various Health Plans and applicable costsharing mandates under state and federal law.

Court records allege Cigna uses four distinct schemes to embezzle and convert funds by defrauding patients, healthcare providers, and their own Self-Insured Health Plan clients by using direct quotes from Health Plans and Cigna’s own written communications: the “Fictitious Contracting Scheme”, a “Repricing Reduction Scheme”, the Contradictory EOB Scheme” and the “Forced Negotiations Scheme

The “Fictitious Contracting Scheme”: According to the Providers, Cigna Administered Health Plans and Subscribers are misled into believing that Cigna’s underpayments of out-of-network claims are legitimate because of an in-network contract or negotiated agreement with a third-party “Repricing Company”. The Providers allege Cigna falsely represents to patients that Cigna negotiated “discounts” with the out-of-network Medical Providers and that “Cigna negotiates discounts with health care professionals and facilities to help you save money.” Moreover, on the Provider ERA forms for the same transactions, Cigna uses the so-called “CO-45” code combination, with “CO” signifying “Contractual Obligation” and “-45” signifying “Charge exceeds fee schedule/maximum allowable or contracted legislated fee arrangement.” Cigna argues that this code combination is properly used when the medical provider’s “charge exceeds either the contracted in-network rate or the out-of-network maximum allowable rate like the MRC or R&C.”

“But when Cigna applies the “CO-45” coding combinations to amounts described as “discounts” on the patient EOBs, Cigna is falsely representing that Cigna “contracted” for the reduction.

The “Repricing Reduction Scheme”: The Providers also allege that Cigna misleads its own clients (Cigna Administered Self-Insured Health Plans) into paying “cost-containment” fees to Cigna and Repricing Companies calculated as a percentage of the underpayment in relation to the value of the Providers’ claims. Yet, while Cigna represents that “applying these discounts avoids balance billing and substantially reduces the patient’s out-of-pocket cost,” Cigna pays itself and the Repricing Companies cost-containment fees whether or not the cost-containment process saves the Self-Insured Health Plan money. Ironically, Cigna has been at the forefront of initiating litigation against out-of-network providers for not collecting patient liabilities in full. Interestingly, this case alleges that Cigna misrepresents the balance of unpaid claims as “Discounts” to its members.

The “Contradictory EOB Scheme”: Here the Providers allege that Cigna has tried to confuse and mislead them as well as patients, through false and inconsistent statements on Cigna-issued EOB forms issued to patients and ERA forms issued to the Providers. Cigna tells the Providers on the ERA forms that the amounts Cigna has held back are “not covered” by the Plans or are subject to “adjustments,” and the patient owes the balance. However, Cigna’s EOB forms issued to the patients for the same claim, report that Providers agreed to a “discount” and the patient has “saved” the rest.

According to court records, “it is impossible to reconcile Cigna’s statements on the patient EOBs—that a “discount” was applied to their claim and the patient “saved” the amount of the discount—with Cigna’s statements on the provider ERAs for the same claims, that make clear that the patient has not “saved” anything because they show that the patient owes a huge balance bill.

The “Forced Negotiations Scheme”: The fourth Scheme alleges that Cigna forces out-of-network Medical Providers to enter into negotiations for payment of valid claims, with the goal of either coercing or wearing down the Providers to accept drastic underpayments. Allegedly, Cigna conspires with repricing companies to misrepresent deep discounts, saying in some instances that the services are not covered. According to the Providers, Cigna’s processing system is set up to automatically send all out-of-network claims to the Repricing Companies. The repricing companies, in turn, send the Providers letters threatening that the services will not be covered at all, or that the Providers will be reimbursed at a percentage of the Medicare rate. Even worse, if the settlement offers are rejected, Cigna falsely declares large portions of the claim “not covered.”

All ERISA health plans, medical providers and patients must educate themselves in order to understand the facts of these cases.

For years large insurers’ controversial processes have been an issue for out-of-network providers across the nation. Now, self-insured plans are starting to feel the pain of these same, potentially illegal practices.

Health plans must be proactive in validating that plan assets are used to pay for their member’s medical expenses or otherwise get returned to their plan.

Avym has helped Self-Insured Health Plans recover millions from TPAs that engage in questionable practices. Avym advocates for ERISA plan assets audit and embezzlement recovery education and consulting. With new Supreme Court guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars of self-insured plan assets on behalf of hard-working Americans. To find out more about Avym’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs contact us.

Open Letter Asking for Transparency

Over the years healthcare in the US has evolved into an extremely complex, non-transparent and convoluted process. For even the most informed, understanding this baffling process is nearly impossible. Avym’s mission is to help demystify the US healthcare industry. As consultants in the healthcare sector, we advocate for education, transparency and compliance.

As such, we advise – and count among our clients – all parties that interact within the healthcare industry and include both medical providers and self-insured employer health plans. We even advise patients. Truthfully, we are happy to help anyone that reaches out to us.

On occasion, we write and share opinion pieces discussing industry trends and issues. Our goal is to provide an open transparent dialogue on these issues and trends, and we encourage all perspectives in order to assist everyone in search of information on related topics.

Sometimes we write about issues presented in legal cases, and while we offer our opinion of the issues to the best of our ability, we neither endorse nor disparage the practices of any parties to the suit. Inevitably, however, some entities may not agree with our opinions. In these situations, we strive to create an environment where a transparent and open dialogue can occur, welcoming insights and perspectives that differ from ours.

Recently, we wrote an opinion article describing a particular court case in an attempt to offer insight and educate industry professionals on the many issues that concern them on a daily basis. The original opinion article, titled “Don’t Leave Fox Guarding Employer Plan” which can be found here, and here.

Unfortunately, and in spite of our best efforts, an entity who was never named in our article but who was a party to the lawsuit referenced in our article, chose to send us a letter threatening legal action. Consistent with our core values of transparency and in an effort to correct any mischaracterization of our article from factual inaccuracies in said letter, we have decided to share the letter in order to help clarify and resolve any confusion.

Here is a copy of the letter:

Our article never suggested AMPS or any other party to this particular lawsuit is, or was, acting in an unscrupulous manner. Curiously, AMPS views the article as defamatory, in-spite of the fact the article never mentions AMPS (or any of the defendants) by name.

Additionally, as mentioned before, we advise medical providers as well as self-insured employer health plans. We strive to empower self-insured health plans by espousing the importance of education on federal and state rules & regulations, trends, risks, and other valuable information in order to reduce wasteful spending while at the same time, allowing all Americans access to affordable, timely medical care.

Lastly, an important point to consider is our opinion piece does indeed make clear the final disposition of the case, where the courts ruled in favor of the defendants and against the self-insured employer plan plaintiffs.

During this historically critical time in American healthcare, where there is a lack of transparent information, we advocate for transparency to include dissemination of important information and open discourse. We are under the impression this is a mutual goal of all industry professionals and were confused as to why AMPS would choose to send a threatening letter, mischaracterizing our opinions and intent, instead of choosing to engage in a transparent, productive discussion.

Avym will continue to advocate for ERISA plan assets audit and embezzlement recovery education and consulting. With new Supreme Court guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars of self-insured plan assets, on behalf of hard-working Americans.

Don’t Leave Fox Guarding Employer Plan

Self-Insured Employer Health Plan Administrators, Plan Sponsors, and key decision-makers would do well to heed the old adage: if it sounds too good to be true, it probably is.

In the ever-changing employer healthcare landscape, there has been an increasing group of professionals espousing “new solutions” that purport to offer substantial savings to self-insured employer health plans, particularly with out-of-network claims. One of the issues with many of these “new solutions” is that very few vendors/entities agree to accept fiduciary responsibility and the accompanying liabilities.

One of those “solutions” involves reference-based pricing (RPB). While relatively few employer plans have adopted RBP, some employers are considering this “new solution” under the impression that there are no other alternatives.

Employer health plans considering any of these “new solutions” should factor in the substantial risks before implementing any of these provisions plan wide, lest they are left facing lawsuits from their own members as well as medical providers.

This case offers a cautionary tale to self-funded employer health plans, where a self-insured employer health plan implemented a reference-based pricing mechanism. The case is Central Valley Ag Cooperative v. Leonard, No. 8:17CV379, 2019 WL 4141061, D. Neb. The plaintiffs, a self-insured health plan, Central Valley AG Cooperative Healthcare Plan and its plan sponsor and fiduciary, Central Valley, (collectively the “Plan”) filed the lawsuit against their own third party administrator and medical claim reviewers, asserting claims for breach of fiduciary duty under ERISA as well as self-dealing.

The Plan alleged that the vendors created a systematic reimbursement scheme that financially benefitted themselves at the expense of the members.

In summary, the Plan accused the vendors of cutting claims payments so low, substantially lower than contracted rates, that Plan members were hit with extremely high balance bills from medical providers that did not accept the RBP rates. This led to lawsuits against the Plan by medical providers and possible lawsuits against the plan by its own members.

Although the self-insured employer plan and plan sponsor agreed to the new pricing structure, according to court records, “claims payments to health care providers under the Plan virtually ceased. Providers complained the Plan was not paying them for services rendered to Plan participants”. The plan also alleged their own plan members were harmed and “subjected to collection efforts by physicians and other providers.” The complaint also alleged that “Several providers refused to render further services to Plan participants, their spouses, and their dependents.” Amazingly the Plan also alleged that it had “lost benefits from its stop-loss insurance carrier due to the extended claim disputes.

Ultimately, the court ruled against the Plan, leaving the Plan on the hook for costly litigation fees.

This case serves as a very important warning to self-insured health plans regarding “new solutions” where unscrupulous vendors will promise monumental savings with no adverse effects or balance billing to Plan members.

While there are many legitimate vendors providing valuable services, RBP at its core represents a zero-sum game, in that savings to employers have to come from somewhere, in this case, either the hospital, through negotiated reductions or the employees, through balanced billing.

Consequently, key decision makers should also be aware of overreaching promises such as “universally accepted fee schedules” and “total compliance” with state and federal laws.

Ultimately, legitimate vendors should be willing to accept fiduciary responsibility and all the liability that comes with it. Self-Insured Employer Health Plan Administrators, Plan Sponsors, and key decision-makers would do well to heed the old adage: if it sounds too good to be true, it probably is.

Avym Corp. has advocated for ERISA plan assets audit and embezzlement recovery education and consulting. With new Supreme Court guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars of self-insured plan assets, on behalf of hard-working Americans. To find out more about Avym Corporation’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs contact us.

AVYM Leads The Way- NJ State Legislature Passes Nation’s First Third-Party Auditor Bill Into Law

Originally Published by By ROI-NJ, By Anjalee Khemlani; Trenton | Jul 1, 2019 at 10:00 am : http://www.roi-nj.com/2019/07/01/healthcare/third-party-auditor-bill-signed-into-law-despite-insurers-opposition/

Third-party auditor bill signed into law

A bill that some insurers lobbied quietly to quash made its way through the Legislature and was signed by Gov. Phil Murphy on Sunday.

The bill calls for a third-party auditor to real-time audit the State Health Benefits Plan and School Employees Health Benefits Plan.

It was first introduced in October 2018 by state Sen. Paul Sarlo (D-Wood-Ridge), and came from a report commissioned by a New Jersey doctor that alleged

health insurers were skimming off the top of claims payments for the SHBP and SEHBP.

The report was published by California-based AVYM.

ROI-NJ previously reported that the state’s contracts with Aetna and Horizon Blue Cross Blue Shield of New Jersey are set to expire this year, allowing a revamp of the Request for Proposal process and changing the type of contracts the state has with insurers who administer the state plans.

The Office of Legislative Services said in its fiscal analysis of the bill that it could not put a specific savings amount from the audited claims, even though

the AVYM report alleges savings of more than $1 million to the state.

“Hiring a third-party medical claims reviewer to provide regular, frequent and ongoing review and oversight of the claims process, which process includes, but is not limited to, the receipt, management, adjudication and payment of claims, serves the best interests of the state, participating employers and the thousands of employees and their dependents covered under the (SHBP and SEHBP),” according to the legislation.

The goal is to have a medical claims reviewer hired in time to review claims from plans that will be in effect in January 2020.

Aetna Slammed With $25.5M Verdict For Improper Claim Denials, Just Months After Medical Director Admits Never Reviewing Records

An Oklahoma jury slammed Aetna with a $25.5 Million verdict for improperly denying medical claims, awarding the family of the deceased patient $15.5 million in emotional distress and another $10 million in punitive damages. The verdict comes just months after an Aetna medical director admitted under oath, that he never actually looked at a patient’s medical records while at Aetna because it was Aetna’s protocol, and that he based his decision off “pertinent information” provided to him by a nurse.

The case details are very common and happen everyday across the nation: Patient pays for health insurance, patient gets sick and seeks treatment, insurer denies claim under the guise that services are deemed experimental or investigational. According to the family’s attorney, Doug Terry, “[this] case represents/exposes so much of what is wrong with health insurance,” Terry said.

“This case gave the jury a look behind the curtain so they could see what goes on at a health insurance company when they deny claims.  The evidence showed Aetna’s denial of her claim involved overworked, under-qualified doctors working in the interest of their employer’s bottom line who are compensated in part based on the profitability of the company.”

Court documents showed that evidence was presented to the jury, showing that Aetna’s doctors spent just minutes reviewing her case, despite the critical nature of her condition. Ultimately, Aetna’s  medical doctors denied the coverage, saying it was experimental and investigational, though clinical expert, Dr Andrew L. Chang, argued the treatment was not new, but a well established cancer treatment for decades, and had not only been approved by the Food and Drug Administration, it but is also covered by Medicare.

Interestingly, Aetna considers the treatment appropriate for pediatric patients; and Medicare pays for the treatment in 65 year olds, which raises the question: “what is it about 22-year-olds to 64-year-olds that makes proton therapy experimental? There is no good answer for that; insurance companies call it that because they decided to deem it as such.” according to Dr. Chang.

According to multiple outlets, several jurors mentioned that they believed Aetna had “Rubber Stamped” the claim denials, based on the very limited time Aetna medical doctors spent actually reviewing the claim. Ultimately, the jury found that Aetna had “recklessly disregarded its duty to deal fairly and act in good faith with the Cunninghams.

Astonishingly, Aetna’s  attorney John Shely said in closing arguments that Aetna was proud of the three medical directors who denied coverage, even turning to thank them as they sat in the front row of the courtroom, according to jurors and other witnesses in court.

According to a CNN article, this decision represents the largest verdict in an individual claim denial insurance case in Oklahoma history, and could have major ramifications across the country for a form of cancer treatment called proton beam therapy.

The Case info: Ron Cunningham et al. v. Aetna Life Insurance Company, et al; Case number CJ-2015-2826 in the District Court of Oklahoma County, State of OK

For nealry a decade, Avym Corp. has advocated for ERISA plan assets audit and embezzlement recovery education and consulting. Now with the Supreme Court’s guidance on ERISA anti-fraud protection, we are ready to assist all medical providers and self-insured plans recover billions of dollars on behalf of hard-working Americans. To find out more about Avym Corporation’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs click here.

Blue Cross Blue Shield IL Sued for Fraud, Robbing Chicago Taxpayers

Health Care Service Corp, dba Blue Cross Blue Shield IL, has been sued for fraud on behalf of the City of Chicago and its taxpayers, for inflating claim charges in order to skim taxpayer dollars.

As we have previously written, recent cases disputing “cross-plan offsetting” and improper cost containment activities have begun to see the light of day. While many of these cases involve private sector commercial health plans, the public sector is not immune to these questionable business practices. As more and more of these cases make their way through the courts, all self-insured health plan administrators, including public or municipal plans, charged with properly monitoring and safeguarding plan assets should do so, independent of their TPA’s own reporting. 

According to its website, Health Care Service Corporation, a Mutual Legal Reserve Company (HCSC) is the largest customer-owned health insurer in the United States and fourth largest overall, operating through health insurance Plans in Illinois, Montana, New Mexico, Oklahoma and Texas. The group benefits from its well-established market presence and leading overall market share in each of the five states in which it operates. With 8.1 million members, Blue Cross and Blue Shield of Illinois (BCBSIL) is the largest health insurance company in the state of Illinois. The insurer administers health plans for the City of Chicago employees.

The lawsuit was brought by Kathleen Harper, on behalf of the City of Chicago and its taxpayers, and alleges BCBSIL inflates medical provider charges then submits the inflated charges to the City of Chicago and keeps the difference between what it collects from the City’s reimbursement and what it actually pays to medical providers. According to the amended complaint, filed on October 9, 2018:

“These representations were not true or accurate. They were in an inflated amount and rather than reflecting the actual amount HCSC paid its providers…HCSC admits that the amount HCSC bills and receives from the governmental entities ostensibly as reimbursement for payments it has made to providers on behalf of these self-insured governmental entities is substantially less than it actually pays these providers.

The lawsuit also seeks unspecified damages and a  “full and complete accounting of said payments and receipts for the last ten years of any and all additional payments, ‘discounts’ or other sums HCSC has kept “for its own benefit” taken from the public funds taken by HCSC from one or more of the local government entities who have hired it to administer their self-insured health care plans


Other Blue Cross Blue Shield entities have faced similar problems before for this kind of activity. Recently, Blue Cross Blue Shield Michigan was hit with a flurry of lawsuits, for skimming unauthorized fees, from their self insured health plan clients. The lawsuits, filed between Aug. 9 and 11 2017 in federal court in Michigan, accuse Blue Cross of charging hidden and unauthorized fees to the employers’ health plan assets as a means of improving its financial position without alienating customers. The lawsuits build from a 2014 appeals court decision where Blue Cross was found liable for this conduct under ERISA and upholding a $6 million judgment against the insurer.

Since that 2014 decision by the U.S. Court of Appeals for the Sixth Circuit, more than 200 ERISA cases have accused Blue Cross of charging hidden health plan fees. The employers suing Blue Cross include a car dealer, a plastics manufacturer, an auto parts maker, and a college, among others.

Other recent cases illustrate the pervasiveness of these questionable practices. In one particularly egregious case, the Department of Labor sued TPA Magnacare, allegedly for charging fees that were not disclosed to its ERISA plan clients. According to court records, the plans paid MagnaCare the “full amount, yet MagnaCare remitted the lower charges to the providers and retained the undisclosed markup” 


In this case, the complaint alleges the business model being used by BCBSIL for the City of Chicago benefit plan constitutes fraud:

“The misrepresentations described above as well as this scheme itself, one that HCSC has admitted in public is its “business model” and allowing it to profit from this scheme constitutes fraud under the Common Law of the State of Illinois”

Astonishingly, the complaint alleges that BCBSIL intentionally prohibits the City of Chicago or any of its taxpayers from seeing how much BCBSIL actually pays itself in fees or how much it contracts with providers:

“HCSC takes compensation for its services as the Third-Party Administrator under its contractual agreements with the City in an amount that is not disclosed in amount or in detail to the citizens of Chicago or to other members of the public. The amount HCSC takes for its services is also not limited to any amount on the face of its contract or available for the public in any manner whatsoever…HCSC does not disclose to the governmental entities or to the public that bears the ultimate burden of payments made by those entities the terms of these separate contracts with its providers, asserting before the Courts of Illinois that these contracts are private, privileged from disclosure or otherwise will not be made available for review by these local government entities or their taxpayers.

The lawsuit also alleges that the City of Chicago has been aware of the practice since 1985 but has not acted to correct or change the practice. The City of Chicago is not named in the suit.

Court case info: Harper, Kathleen v. Health Care Service Corp dba Blue Cross Blue Shield IL;Case No. 2018-L-010842; Filed on 10/09/2018 in the Circuit Court of Cook County Illinois.


It’s a well-known fact from federal court documents and in healthcare industry news reports, that Billion$ of ERISA plan claims payments from self-insured plans may have been recouped or offset by self-insured plan TPA’s for the TPA’s fully-insured accounts. Additionally, many Billion$ more may have been similarly siphoned off based on “Fake PPO” discounts or  Phantom “Savings” fees. In the healthcare provider arena the No. 1 health care claim denial in the country today is the overpayment recoupment and claims-offset.  Correspondingly, for self-insured health plans, the No. 1 hidden cost is overpayment recoupment and plan assets embezzlement. 

As we have written about before, this practice of keeping the difference between amounts actually paid to the medical provider and the amounts that are removed from Plan trusts accounts, are estimated to be between 30% to 60% of all Plan claims expenditures. Simultaneously, as a result of this and other cases, including the Supreme Court’s decision to deny the BCBSM challenge of the Sixth Circuit Court decision, these same self-insured health plan administrators nationwide, should seek return of Billions in plan assets as a result of the TPA industry’s potential recovery of a billion dollars in overpayment recoupments and anti-fraud campaigns over the past 12 years.

Avym Corp. has advocated for ERISA plan assets audit and embezzlement recovery education and consulting. With new Supreme Court guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars of self-insured plan assets, on behalf of hard-working Americans. To find out more about Avym Corporation’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs contact us.

New Jersey State Looking for Answers in Health Plan Administration

Originally Published by By ROI-NJ, Anjalee Khemlani
Trenton | Apr 30, 2018 at 6:55 am : https://www.roi-nj.com/2018/04/30/healthcare/sarlo-in-letter-to-muoio-asks-n-j-to-look-into-details-of-health-insurance-contracts/

Budget and appropriations chair has questions about reimbursements, audits. State Sen. Paul Sarlo has asked Treasurer Elizabeth Muoio about the state heath plans’ third-party administrators. Reining In health care costs continues to be a challenge for many corporations and self-funded plans.

The story Isn’t any different for the state of New Jersey, the largest employer In the state. State Sen. Paul Sarlo (D-Wood-Ridge) is trying to find new solutions – and potentially hundreds
of millions of dollars In savings for the state – by addressing the Issue In a different way: Paying closer attention to how the state pays its contracted plan managers.

Last week, in a letter to state Treasurer Elizabeth Muoio, Sarlo asked the Department of the Treasury to determine if the health insurers are keeping any recovered funds, through savings from appeals, and if the plans are charging the state anything additional to what they pay the providers. 

Sarlo Letter to NJ Treasurer re TPA & Response

Sarlo also asked about surcharges related to out-of-state visits by plan members, and whether or not the state can cap those. 

In addition, he asked if the state is auditing Aetna and Horizon Blue Cross Blue Shield of New Jersey, the third-party administrators of the State Health Benefits Plan and School Employers’ Benefits Plan, which together cover more than 600,000 current and retired state employees and cost the state $6 billion in 2016 alone. 

The contract for both is set to expire in June, and a request for proposals with the same rules and requirements as the existing contract is currently out for bid. 

And, while the RFP adds to the timeliness of Sarlo’s request, it was not necessarily the impetus. 

Legislators began looking into the process in January after a New Jersey doctor, Rajnik “Raj” Raab, alerted them to a white paper he paid a California-based health care reimbursement recovery firm, AVYM, to produce. 

In the six-page white paper, the firm said New Jersey could save up to $1 billion annually: AVYM Transparency and Disclosure in Health Care Insurance

AVYM said such huge savings are possible because third-party administrators may not be paying back the state any savings they receive over time from claim appeals. 

Sarlo, the deputy majority leader who serves as the chair of the Senate Budget and Appropriations Committee, told ROI-NJ how such a scenario could play out. 

“Here’s what we think happens,” he said. “A public worker in town XYZ cuts his hand, severs his hand, it’s a serious accident. He incurs $50,000 worth of bills. He petitions the fund representing the town … we pay. Now they (insurers) scrutinize and, over time, after arguing back and forth, reduce it to only $40,000.” And, if the reduced amount comes after the $50,000 has already been paid to the insurers, there is no way to check or prove the extra $10,000 is returned the state. Sarlo said there is no evidence that the state has ever received a refund from the insurers. 

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The contract between the state of New Jersey and Aetna and Horizon, which ROI-NJ obtained through an Open Public Records Act request, shows that the practice in question is prohibited, and that the state can audit the payments at any time. 

Representatives from Horizon and Aetna declined or did not return requests for comment on the issue, pointing instead to the agreements they have with the state.  

The contract with the insurers addresses potential overpayments. 

According to the contract, the state only reimburses the insurer after the payment is made.  

“The (insurer) will be reimbursed for claim checks and electronic fund transfers to providers that have cleared the (insurer’s) bank account by the (insurer) transmitting the total amount cleared via electronic mail or facsimile machine to the Commission by 11:00 a.m., EST daily, to determine the total amount that will be funded by wire transfer to the (insurer)’s designated bank on the same day. The transmission must include a breakdown between state and local amounts,” according to the contract. 

The contract also has a provision about any overpayments or refunds: 

“(Insurer) must disclose, fully account for, and remit, to the Commission any and all funds received by it as the result of a recovery of an overpayment or incorrect payment, prescription drug rebates and other pharmaceutical revenues, or subrogation of a claim or lien. Any discounted or negotiated rates or payment arrangements, any price adjustment, or refunds, and any retroactive or supplemental payments or credits negotiated with regard to covered services received by SHBP members must be remitted to the Commission. (Administrative) fees must take into consideration this provision,” according to the contract. 

And, if the state believes there is a problem with the payments, it can audit at any time. 

“(Insurers) must cooperate in the administration of routine audits performed by the Commission or its designee, on various aspects of the administration of the Plan, including but not limited to claims processing, medical management and enrollment data.  The various audits are designed to ensure (1) contract compliance, (2) that the interface system is working properly, (3) proper payment of claims where the individual should have coverage or (4) proper rejection of claims where the individual’s coverage has terminated, and (5) correct allocation of claims according to SHBP experience groups and (6) efficient and effective medical management,” the contract said. 

“An audit may be conducted if the Commission has a reasonable and good faith belief that a situation exists that will result in harm to the Plan. Audits must encompass records held by any subcontractor or related organization and held by any entity that is a member of the contractor group of companies.” 

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AVYM co-founders Mark Flores and Vincent Flores told ROI-NJ that the organization specializes in helping providers navigate claims and has seen a number of questionable practices since its inception in 1999. 

The white paper looked at claims from a Sparta school employee’s surgery and suggested that the provider was only paid 50 percent of the amount originally claimed, and the remainder was pocketed by the insurer. 

“Based on court cases (cited in the paper), it seems apparent TPAs can and do hide ‘undisclosed’ administrative compensation fees within medical claims payments. These undisclosed fees, which can account for 30 to 60 percent of a plan sponsor’s health claims expenditures, are usually siphoned into the TPA variance account through ‘retention reallocations’ and ‘cross plan overpayment’ offsets, among other techniques. Based on industry estimates and national claims processing standards, we believe the New Jersey State Health Benefits Plan and the School Employees’ Health Benefits Plan can realize a $1 billion (per) year reduction in expenditures by rigorous monitoring of TPA practices,” the AVYM report said. 

Mark Flores said that the actions of the TPA occur in a black box and are not visible to the state. “The big issue is that there’s no way to confirm whether or not the doctor is receiving the amount the (state) is paying the TPA for the claim,” he said. And that could save the state at least 30 percent of its current medical claims expenditures. 

Sarlo said one of the reasons he is pursuing the matter is the insurers’ response to transparency legislation. 

“When I had in my bill, when I had transparency disclosure to follow the money on these claims, which include TPAs out to providers, they opposed that bill,” Sarlo said. “Aetna, Horizon and all the health insurers opposed that bill.” 

Sarlo hopes the answers from Muoio will result in, at the very least, changing language for the new contract with the insurers. 

“Greater transparency on the operations of these third-party administrators will help identify cost savings that should be passed on to the state,” Sarlo said in a statement accompanying the letter. “There needs to be an accounting of the savings that insurance companies retain as fees and commissions.  

“We must ensure that the majority of these savings flow to the state as they should. Every year, doctors and other health care providers complain of decreasing reimbursements. At the same time, health care consumers complain of rising premiums and increasing costs. The obvious question that needs to be asked is: Where is all the money going?” 

Sarlo told ROI-NJ he realizes the answer won’t be a cure-all for the state, but it’s one worth getting. 

“I’m not saying this is going to save the budget at the end of the day,” he said. “But it’s worth a look. 

“This is serious dollars. The state of New Jersey is paying $37,000 per employee. If we can find savings in those health care plans, we must do it.” 

 

US Department of Labor Gives Kiss of Death to MEWA Fiduciaries in “Healthcare Madoff” Scheme

In Unprecedented Move, DOL Exercises Authority to Issue Cease and Desist Order Under Section 521 of ERISA, Shut Down Fiduciaries Accused of Misconduct, “Healthcare Madoff” Scheme

The U.S. Department of Labor obtained a Temporary Restraining Order in the U.S. District Court for the Northern District of Illinois against Multiple Employer Welfare Arrangement (MEWA) service providers for allegedly failing to pay more than $26 million in member’s health bills while keeping a substantial amount of money for themselves, then siphoning off those funds to offshore Bermuda accounts. The court also ordered 2 banks to freeze 14 bank accounts that were alleged to have plan assets in them.

The court ordered Black Wolf Consulting, AEU Holdings and one of its subsidiaries removed and barred from serving as fiduciaries or service providers to the individual employer plans that participate in the AEU Holdings LLC Employee Benefit Plan, a Multiple Employer Welfare Arrangement (MEWA) established by the defendants.

The court’s order immediately appointed an independent fiduciary to oversee the MEWA’s operations, marshal and control the assets of the MEWA as it relates to the underlying participant plans, perform an accounting of the MEWA’s financial position, and determine the MEWA’s ability to pay outstanding participant health claims, according to the DOL.

The order comes on the heels of the DOL lawsuit filed on November 2, 2017 seeking declaratory and injunctive relief including a temporary restraining order and preliminary injunction to remove the fiduciaries. The Complaint also alleges multiple violations of ERISA including, using plan assets to pay excessive fees and expenses, assessing undisclosed fees to the contribution amounts, failing or refusing to pay approximately $16 million for member’s medical claims, then transferring unpaid monies to offshore bank accounts in Bermuda.

Black Wolf kept anywhere from 17 to 44 percent of the money employers and employees paid toward premiums, according to the DOL complaint.

At its height, the MEWA covered approximately 14,000 participants and beneficiaries. These participants worked for more than 560 employers in 36 different states. However the increased backlog of unpaid claims created significant problems for many members as doctors refused treatments because of unpaid bills and many members were sent to collections accounts, according to the DOL.  

Additionally, the DOL issued a cease and desist order that prevents sub-brokers and aggregators working on behalf of the MEWA from marketing it to prospective employers or from enrolling new employers. The Secretary has the authority to issue an ex parte cease and desist order pursuant to ERISA § 521(a), 29 U.S.C. § 1151(a), and its implementing regulation, 29 C.F.R. § 2560.521-1. This authority applies only to a MEWA, and the cease and desist order may be issued whenever the Secretary finds reasonable cause to believe, among other things, that the respondent(s) engaged in conduct that creates an immediate danger to public safety or welfare within the meaning of § 2560.521-1(b)(3).  29 C.F.R. § 2560.521-1(c)(1)(i)(B).

According to the DOL Memorandum:

Over $15 million in processed claims from 2016 and over $11 million in processed claims for 2017 remain unpaid. During the same time period as these claims have gone unpaid, AEU and Black Wolf have enriched themselves substantially by paying themselves and other entities millions of dollars in “fees.” Meanwhile, hundreds of unsuspecting employers have joined the AEU Plan to provide affordable medical benefits for their employees, only to have their employees be saddled with thousands of dollars in unpaid medical claims-some facing escalating collections actions and others unable to obtain life-saving treatment.

The Memorandum goes on to point out:

This results in thousands of participants incurring additional medical claims that will never be paid. Current and former participants report being turned away by their doctors because claims have gone unpaid. They have had to forego life-saving treatments for cancer and other illnesses. Parents who have just given birth are saddled with unanticipated medical claims at the same time they are trying to care for their newborn children. Collections agencies are calling and knocking at their doors. Many fear for their family’s future financial security. Despite the over $26 million in current unpaid claims and the harm facing these participants, Defendants continue to seek out new, unsuspecting employers to feed what is to them, a very profitable enterprise.”

Original DOL Press Release

These new ERISA embezzlement cases are part of a growing trend consistent with the court’s Hi-Lex decisions and as well as other cases we have written about before.

This lawsuit in particular should serve as a warning and wake up call for all Plan Administrators to continually monitor their TPAs in accordance with the Plan Administrator’s statutory fiduciary duties and to discharge its duties with respect to a plan solely in the interest of the participants for the exclusive purpose of providing benefits to them.

For over 7 years, Avym Corp. has advocated for ERISA plan assets audit and embezzlement recovery education and consulting. With new Supreme Court guidance on ERISA anti-fraud protection, we are ready to assist all self-insured plans recover billions of dollars of self-insured plan assets, on behalf of hard-working Americans. To find out more about Avym Corporation’s Fiduciary Overpayment Recovery Specialist (FOR) and Fiduciary Overpayment Recovery Contractor (FORC) programs click here.

HHS OIG Work Plan 2017

OFFICE OF INSPECTOR GENERAL- U.S. Dept. of Health and Human Services FY 2017-Work-Plan -The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG)
Work Plan for fiscal year (FY) 2017 summarizes new and ongoing reviews and activities that OIG plans to pursue with respect to HHS programs and operations during the current fiscal year and beyond

HHS OIG Work Plan 2017