FEATURE
or reduce them as the re-pricer sees fit. Reductions in reimbursement can oc- cur when the re-pricer concludes that the ASC’s charges exceed the “usual and customary” charge for the area, are medically unnecessary or have been un- bundled. Occasionally, it is possible that the re-pricer will actually receive greater payment from the insurer or plan than the provider receives for the actual medi- cal services rendered when the re-pricer successfully makes dramatic cuts to an ASC’s reimbursement.
Paying the Patient Another way insurers try to undermine out-of-network providers is by pay- ing the patient, not the provider, for the medical services. This practice can undercut a provider’s ability to collect what is due, since the provider is left chasing the patient for payment, hoping he or she will turn over the checks re- ceived from the insurer. This practice is legal in some states and illegal in others.
Disregarding Network Agreements While many ASCs choose to remain out of network with particular insur- ers or third-party administrators, they will sign national Preferred Provider Organization (PPO) network agree- ments with companies like MultiPlan, Beech Street and others. In exchange for being steered to patients by the PPO networks, providers will give insurers and plans that subscribe to these networks discounts off services rendered. These relationships can be beneficial when they increase the vol- ume of patients and add predictability to the timing and amount of payment received. But they can turn sour when insurers or third-party administrators disregard the PPO arrangements that are in place (paying less than the con- tractual amount). Problems also arise when PPO networks are accessed and discounts are taken by third-party ad- ministrators or insurers that are not parties to the PPO networks (the si- lent PPO problem).
Medicare Rates
One of the most challenging long-term problems for out-of-network providers is the shift toward payment at Medicare fee-schedule rates and away from usual and customary charges. As many providers know all too well, Medicare pays far less than usual and customary
Don’t expect this trend to change. At a recent conference for managed care litigators in Philadelphia, insurance company counsel discussed the merits of asserting claims against providers in a session titled “Going on the Of- fensive: Taking an Aggressive Stand Against Providers.”
Combating these challenges requires providers to take a close look at their business practices and to fight back when an insurer or plan acts unreasonably.”
—David Greenberg, Arent Fox LLP
commercial rates. When insurers and plans use Medicare rates, the provider and the patient get shorted (less money up front for the provider, with the patient responsible for the balance of what is left—often a large amount). The New York State Department of Financial Services recognized this trend in a March 2012 report titled “An
Unwelcome Surprise: How
New Yorkers Are Getting Stuck with Unexpected Medical Bills from Out- of-Network Providers” (http://www.
governor.ny.gov/assets/documents/ DFS%20Report.pdf).
Litigation Recent lawsuits related to out of net- work billing have been capturing the headlines in the health care trade press. Major insurers, like Aetna and United Healthcare, have taken the of- fensive by suing ASCs that they allege engaged in insurance fraud. The alle- gations tend to vary, but often include claims that the targeted ASCs rou- tinely waived patients’ cost-sharing obligations (leading to the submis- sion of false or fraudulent claims to the insurer), improperly unbundled services on claims for payment, sub- mitted excessive charges or induced network physicians to send patients to out-of-network facilities by offer- ing incentives to those physicians.
Fighting Back
Combating these challenges requires providers to take a close look at their business practices and to fight back when an insurer or plan acts unrea- sonably. There are successful con- sultants out there that specialize in assisting ASCs with out-of-network payment recovery. Others are adept at negotiating favorable terms for pro- vider agreements based on their deep knowledge of insurer contracting practices and rates. In short, ASC re- imbursement specialists can add sig- nificant value by helping ASCs deal with the out-of-network challenges discussed above. Sometimes, however, when the
stakes are particularly high (and the insurer’s or plan’s conduct is particu- larly egregious) engaging competent legal counsel is a smart strategy. Insurers and plans tend to treat pro- viders differently once they have en- gaged sophisticated legal counsel to represent them. Here are some tips on engaging outside counsel to han- dle a particularly big dispute with an insurer or plan: ■
The ASC’s normal outside counsel may not be best suited to handle a high-stakes dispute with an in- surer. Just because a law firm did a great job handling a malpractice claim or the financing of a new
ASC FOCUS NOVEMBER/DECEMBER 2012 9
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