Out of Network: Exclusion of Providers Based Upon Referral Patterns and Network Adequacy2012 Texas Health Law Conference

Susan Feigin Harris sharris@bakerlaw.com

713.646.1307

601622735

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The Out-of-Network Payment Issue: Where the Rubber Meets the Road

• Issues:o Providers that adopt an “out-of-network” strategyo Providers with ownership interest refer to the entity, which is

also out of networko Providers that discount beneficiary copayments and

deductibles – patient financial obligationso Health plans that push back – refuse to contract with

providers; attempt to shut providers out of the market

• Questions:o What are the payment obligations of health plans out of

network?o What are the legal parameters under which these issues

should be evaluated?

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Health Plan Policies

• Provide out-of-network benefits to beneficiaries

• May advertise on websites re: PPO or POSo “Advantages of a PPO include the flexibility of

seeking care with an out-of-network provider if so desired . . .”

o “In a POS, you have greater freedom to see out-of-network providers than with an HMO . . .”

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Out-of-Network Payment

• Health plans may or may not pay “usual and customary” rates

• The term “usual and customary rate” is not well-defined in state or federal law and is subject to market forces

• Health plans have responded over the years to lack of definition and have developed their own application – % of Medicare

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Out-of-Network Payment Common Characteristics

• Varies widely among payors based on plan benefits

• Denials for “allowable amounts” as determined by the health plan and employer

• Subsequent recoupment of payment or overpayment requests

• Scare tactics used to pressure physicians who refer out of network and patients who see OON providers

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Provider Behaviors Out of Network / Market Response

• Providers offer discounts to patients to provide “seamless” benefits when referred to OON facility – discounts to the patient copayment and deductible amounts

• Is this legal?• What actions must providers take to ensure

legality when discounting OON?• What actions have payors taken in

response?

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Discounts vs. Waivers to Patient Financial Obligations

• Legal considerationso Relief of the patient financial obligations

Medicare Civil Monetary Penalty Statute OIG concerns Letters from TDSHS and TDI Texas 1993 AG opinion Texas Penal Code

o Pricing Illegal pricing prohibition (Tex. Ins. Code § 552.003) Advertising restrictions (Tex. Admin. Code § 164.3

(11-12))

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Medicare Civil Monetary Penalty Statute

• Any person who offers or transfers remuneration to any Medicare or Medicaid beneficiary “likely to influence such individual to order or receive . . .”

• “Remuneration” = includes waiver of coinsurance and deductible amounts and transfers of items or services for free or other than fair market value.

42 USC § 1320a-7a(a)(5); 42 USC § 1320a-7a(i)(6)

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Waiver of Copayments

• Safe harbor protection afforded if:o Not offered as a part of an advertisement or

solicitationo Person doesn’t routinely waiveo Waiver is made following a good faith determination

of financial needo Waiver is made without regard to diagnosis or

length of stayo No bad debt claimed

• This applies to Medicare / Medicaid patients, but also Texas anti-solicitation provisions42 USC § 1320a-7a(i)(6)

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Waiver vs. Discount of Patient Financial Obligations

• Texas state law considerationso Illegal pricing prohibitiono Criminal penaltyo Common law fraudo Health facility regulationso Actions by regulatory agencieso Occupations Code provisionso Case law

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Texas Insurance Code §1204.055

• Assignment of Benefit • Contractual Responsibility for Deductibles

and Copayments“the payment of benefits under an assignment does not relieve the covered person of a contractual obligation to pay a deductible or copayment. A physician or other health care provider may not waive a deductible or copayment by the acceptance of assignment.”

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Texas Insurance Code § 552.003

• Illegal pricing prohibitiono Prohibits a person from “knowingly or intentionally charging

two different prices for providing the same product or service, and the higher price charged is based on the fact that an insurer will pay all or part of the price of the product or services”

o The penalty for violating this provision is classified as a Class B misdemeanor and a “fraudulent insurance act” under the Texas Insurance Code

o Not applicable when provided to indigent or uninsured individual who otherwise qualifies for financial indigency policy

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Usual and Customary / Out of Network

• Texas Attorney General Opinion DM-215 (April 13, 1993)o Section 4(c) of Article 21.24.1 “…operates only to

clarify that acceptance of assignment does not relieve a health care provider of any obligations incumbent on him to bill for or collect a co-payment or deductible amount.”

o Cautions that a healthcare provider would be ill advised to represent to a client or prospective client that a deductible or copayment will be waived in order to induce that individual to use the healthcare provider’s services

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Usual and Customary / Out of Network• Texas illegal remuneration statute

o Prohibits any remuneration paid between parties for securing or soliciting patients or patronage for or from a person licensed, certified, or registered by a state healthcare regulatory agency Class A misdemeanor and constitutes grounds for

disciplinary action by the state healthcare regulatory agency that has issued the license, certification, or registration

Both sides of the transaction are subject to civil penalties of not more than $10,000 for each day of violation and each act of violation

Tex. Occ. Code §102.001(a) & §102.010(a)

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Usual and Customary / Out of Network

• Texas Penal Codeo A person will be found to have committed insurance fraud

If a person, with intent to defraud or deceive an insurer causes to be prepared or presents to an insurer in support of a claim for payment under a health or property and casualty insurance policy a statement that the person knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects a person’s right to payment or the amount of a payment to which a person is entitled; or

Solicits, offers, pays or receives a benefit in connection with the furnishing of healthcare goods or services for which a claim for payment is submitted under a health or property and casualty insurance policy

o Penalties Range from a Class C misdemeanor to a first degree felony

Tex. Penal Code Ann. §35.02(a)-(c)

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Usual and Customary / Out of Network

• Hospital audits of billingo “A hospital, treatment facility, mental health facility, or

health care professional may not submit to a patient or a third party payor a bill for a treatment that the hospital, facility, or professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.”

o “If the appropriate licensing agency receives a complaint alleging a violation…the agency may audit the billings and patient records of the hospital, treatment facility, mental health facility or health care professional.”

o Violations are subject to disciplinary action, including licensure denial, revocation, suspension, or nonrenewal.Tex. Health & Safety Code §311.0025

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Usual and Customary / Out of Network

• Texas common law fraud elementso A material misrepresentation,o Which, when made, was known by the speaker

to be false,o Which was made with the intent that it be relied

and acted upon, and o Which was relied upon to the detriment of the

party relying on it.

See, e.g., DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex. 1990); Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714 (Tex. 1990).

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Usual and Customary / Out of Network

• Advertisement restrictionso Prohibits physicians from publishing any

advertisement that: (11) “represents that health care insurance deductibles or co-payments may be waived or are not applicable to health care services to be provided if the deductibles or co-payments are required;” or (12) “represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or co-payments are required.”

22 TAC §164.3(11)-(12) (2012)

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TDSHS / TDI 2005 Letters

• TDSHS (Feb. 15, 2005)o Advised that providers should not be waiving

patient copayment and deductible responsibilities to attract patients to the noncontracted provider or facility. TDSHS warned that “enforcement action may be taken including administrative penalties, suspension, denial, or revocation of the hospital’s license.”

o Cited Ins. Code Art. 21-24-1o Hospitals may be cited for violations of 25 TAC §

133.121(a)(1)(F)

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TDSHS / TDI Letters 2005

• Texas Department of Insurance (Dec. 9, 2005)o Cited “inquiries” that suggest noncontracted providers are waiving

applicable patient financial obligations to attract patients to out-of-network facility

o Warned that “waiver of patient responsibility for any applicable cost-sharing obligations under an insurance policy may create several problematic issues for the health care provider”

o Cited application of the Insurance Code § 21.24 (recodified as 1204.055) regarding waiver of copayments and deductibles when accepting assignment

o Cited AG opinion DM-215; 22 TAC § 164.3 that prohibits advertising of waivers; and warned of allegations of fraud and violations of Texas Occupations Code § 101.203 and Texas Health & Safety Code § 311.0025 for provider’s failure to disclose waiver

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Aetna v. Humble Surgical Hospital, LLC

• Allegations include:o breach by physicians of existing specialist

provider agreements with Aetna by referring Aetna patients for certain procedures to the surgical hospital outside of the Aetna network, in which those physicians had a financial investment interest

o that to induce patients to use the out-of-network facility, patients were promised that their out-of-pocket costs would not be any different than if they received the service at an in-network facilityAetna vs. Ifeolumipo O. Sofola, M.D., Navin Subramanian M.D. and Humble Surgical Hospital LLC (case#: 2011-

73949/Court 152), Harris County, Texas

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Aetna v. Humble Surgical Hospital, LLC

o breach of Specialist Physician Agreement provision agreement as a specialist to “render services to Members

only at Participating Hospitals or other Providers, or those inpatient extended care, and ancillary service facilities which have otherwise been approved in advance by Aetna”

also, agreement to hold members harmless

o failure to disclose the physician’s financial interest o failure to disclose the discountso tortious interference of contracto common law fraud and conspiracy to overcharge

beneficiaries

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Aetna v. Humble Surgical Hospital, LLC

• Harris County state court case dismissed 4/17/12; filed in U.S. District Court for the Southern District of Texas, Civil Action No. 4:12-ev-1206

• Additional violations:o Texas Occupations Code § 101.203 (which prohibits a professional

from violating § 311.0025 of the Health and Safety Code – “A hospital, treatment facility, mental health facility, or health care professional may not submit to a patient or a third part payor a bill for a treatment that the hospital, facility, or professional knows was not provided or knows was improper, unreasonable, or medically or clinically unnecessary.”

o Texas Occupations Code § 102.006 – failure to disclose at the time of referral the physician’s affiliation with the facility and that the physician could receive remuneration as a result of the referral

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Aetna v. Humble Surgical Hospital, LLC

• Texas Occupations Code § 105.002o Knowingly presenting (or causing to be presented) a

false or fraudulent claim for the payment of a loss under an insurance policy. The presentation of reports and billing statements seeking payment at fees far higher than reasonable charges for the same services in the relevant market

• Texas Insurance Code § 552.003o By seeking inflated reimbursement from Aetna for

treatment and services rendered to members simply because the particular patient had medical coverage through Aetna

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Aetna v. Humble Surgical Hospital, LLC

• Claims for Reliefo Common law fraudo Money had and receivedo Unjust enrichmento Injunctive reliefo Declaratory action

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Aetna’s Actions Span Several States

• Aetna has been aggressively suing doctors and surgery centers that the doctors partly own in California, Texas, New York and New Jersey for allegedly overbilling insured patients who go outside the company’s network

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Aetna Life Ins. Co. v. Bay Area Surgical Management, LLC

• Aetna suit against Bay Area Surgical Management, several affiliated physicians and surgery centers in northern California o Accusations include:

Overcharging Aetna $20 million in two years Illegally waiving their fees to induce patient choice Charging $66,100 for a bunion procedure when the

average in-network fee was $3,677 Failing to inform patients of physician ownership in

out-of-network facilities

No. 112CV217943, Superior Ct. of California, Santa Clara (Feb. 2, 2012)

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California Medical Assn. v. Aetna Health of California, Inc.

• California Medical Assn. and 50+ physicians sue Aetnao Underpaying out-of-network physicianso Refusing to authorize some out-of-network

serviceso Terminating the contracts of doctors referring to

out-of-network providerso Seek restitution, injunction against Aetna and

reinstatement of provider agreements Aetna terminated in retaliation for referral to OON facilities or providersNo. BC487670 Superior Ct. of California, Los Angeles (July 3, 2012)

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California Medical Assn. v. Aetna Health of California, Inc.

• Charges against Aetnao Unfair business practices

Attempts to control, direct and participate in the selection of health facilities by PPO members

o False advertising Making false statements about member’s rights to OON

benefits

o Breach of contract With patients and physicians

o Illegal retaliation For terminating participating physician contracts and retaliation

o Interference with prospective economic advantage

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Aetna Wars With California Physicians!

• Aetna refusing to negotiate or contract with any physician to join Aetna’s provider network if the physician is a member of CMA

• Physicians who are named plaintiffs in the lawsuit, as well as those who have no direct involvement, are now being faced with termination from the Aetna network

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CMA Cease and Desist Letter

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Typical Contract Language That Forms Basis for Health Plan Actions

• Referral by primary care physician o Physician shall render services to Members only

at Participating Hospitals or other Providers, or those inpatient, extended care, and ancillary service facilities which have otherwise been approved in advance by Company.

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Sample Contract Language

• Utilization management o Company utilizes systems of utilization review / quality

improvement / peer review to promote adherence to accepted medical treatment standards and to encourage Participating Physicians to minimize unnecessary medical costs consistent with sound medical judgment. To further this end, Physician agrees, consistent with sound medical judgment:…(d) to utilize Participating Physicians to the fullest extent possible, consistent with sound medical judgment…Except when a Member requires Emergency Services, Physician agrees to comply with any applicable precertification and/or referral requirements under the Member’s Plan prior to the provision of Physician Services.

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Sample Contract Language

• Referrals o To the extent required by the terms of the applicable

Plan, Participating Group Physicians who are Primary Care Physicians shall refer or admit Members only to Participating Providers for Covered Services, and shall furnish such Participating Providers with complete information on treatment procedures and diagnostic tests performed prior to such referral or admission. In addition, to the extent possible, Participating Group Physicians shall refer Members with out-of-network benefits to participating Providers.

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Sample Response to Pressure From Health Plans

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Physician-Patient Relationship

• Interference with Relationship Between Patient and Physician or Health Care Provider Prohibited - Tex. Ins. Code § 1301.067 o An insurer may not in any way penalize,

terminate the participation of, or refuse to compensate for covered services a physician or healthcare provider for discussing or communicating with a current, prospective, or former patient, or a person designated by a patient, pursuant to this section.

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Blue Cross Blue Shield

• 2009 Agreement with Texas Attorney Generalo Resolved investigation into Blue Cross’ handling

of out-of-network referralso State investigators alleged Blue Cross

threatened to terminate physicians solely on the basis of referring their patients for medically needed treatments from qualified specialists that were outside the Blue Cross provider network

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Blue Cross Blue Shield

• 2009 Agreement with Texas Attorney Generalo “It is not appropriate to interfere with the protected

doctor-patient relationship by terminating a doctor solely for making good faith out-of-network referrals for necessary care.” – Attorney General Abbott

o Under Texas law, insurance providers cannot interfere with patients’ right to receive medical advice from their doctors. That legally protected advice includes treatment options, healthcare-related recommendations and physician referrals. Doctors have a right – and a duty – to inform patients about treatment options without interference from health insurance providers.

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Blue Cross Blue Shield

• Assurance of Voluntary Complianceo “BCBS agrees it will not take, or threaten, any

adverse action against a Texas physician based solely on that physician communicating with a patient about medically necessary treatment options or referring a patient for medically necessary care outside the limited BCBS network. Nothing in this section shall prevent BCBS from taking any action that is otherwise permitted by law.”

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Misrepresentation Regarding Policy or Insurer – Tex. Ins. Code § 541.051

• It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to:o (1) make, issue, or circulate or cause to be

made, issued, or circulated an estimate, illustration, circular, or statement misrepresenting with respect to a policy issued or to be issued:… (B) the benefits or advantages promised by the policy

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Legislation – S.B. 521 / H.B. 1393 – 82(R)-2011

• Prohibits an HMO from:o Prohibiting, by contract, a provider from providing a patient

with information regarding the availability of out-of-network facilities for the treatment of a patient’s medical condition

o Terminating or threatening to terminate an insured’s participation in a preferred provider benefit plan solely because the insured uses an out-of-network provider

o Prohibiting a healthcare provider participating in a preferred provider benefit plan from communicating with a patient about the availability of out-of-network providers

o Terminating or penalizing a healthcare provider participating in a preferred provider plan solely because the provider’s patient uses an out-of-network provider

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