AS I SEE IT


Out-of-Network Legal Battlefield Intensifies Providers must be organized, thoughtful and methodical to thrive BY NADER SAMII


The legal landscape for out-of-network (OON) billing in ASCs has never been more challenging, more complex or more


active. Providers are closely evalu- ating the landscape in an attempt to determine whether they would be bet- ter served in- or out-of-network. At the same time, payers are incorporat- ing new strategies to minimize their exposure to the higher OON costs. These cost reduction strategies are placing pressure on OON surgery centers as historical OON reimburse- ment rates have been reduced while the requirements to be compliant have increased. A few of the steps being taken by payers to control the increased OON costs include: 


requiring providers to balance bill their patients, which can be finan- cially burdensome for many patients, potentially making in-network a more attractive option for the patients;





paying the patients rather than the provider, regardless of whether an assignment of benefits was properly obtained, thus placing the burden on the provider to directly pursue pay- ment from the patient;





shifting reimbursement from “usual and customary,” which typically reim- bursed better than contracted rates, and reducing it to a percentage of Medicare or to a maximum daily rate;


 


requiring providers to get procedures preauthorized; and


ensuring that providers have given written and verbal notification that the ASC is an OON facility, that the patients’ payment could likely be higher and that the provider has a financial interest in the OON facility. Payers and providers have recently brought numerous lawsuits against


8 ASC FOCUS OCTOBER 2015


each other for all of the above men- tioned issues, thus making the “in- vs out-of-network debate” one of the most controversial issues today in the outpatient surgery arena.


An Evolving System During the past century, the US health care system has changed from a functioning patchwork of fee-for-service arrangements between payers, patients and providers to an increasingly regional, integrated health care delivery system driven by innovative financial strategies and coordinated clinical delivery. As a result, the legal landscape of the new health care system also is more complex than ever before, with a web of contractual agreements between payers and providers, patients and payers, and countless other stakeholders. The in-network and OON options patients can choose from when seeking health


care services are a tangible


byproduct of the legal agreements that have proliferated in recent years. Reimbursement contracts between insurance


companies and providers


create networks of physicians that patients can choose from when seeking health care services, often listed by specialty on an insurance company’s web site. In exchange for increased vol- ume and a faster, more streamlined


collections process, in-network phy- sicians discount their services, payers lock in their costs and patients typi- cally pay less. Patients, however, do not always receive treatment in-net- work—they might consciously seek care from OON specialists because of personal preference—or they might be unaware that their preferred provider does not have a reimbursement con- tract with their insurance company. Perhaps most often they are


unaware of how their provider network system works altogether.


Going Away or Here to Stay? Over the past several years, many ASCs have gone in-network. Despite this trend, the Affordable Care Act (ACA) and the emergence of the health care exchanges might lead to many providers being OON for select payers. In March 2015, the US Depart- ment of Health and Human Services (HHS) published the latest ACA fig- ures for the open enrollment period ending February 22: Of the 11.7 mil- lion individuals who made insurance plan selections through state- and fed- erally run exchanges, 3 percent chose a platinum plan, 7 percent chose gold, 67 percent chose silver, 22 percent chose bronze and 1 percent chose a catastrophic plan. These ratios are very important to understanding the OON reimbursement issues ASCs and other providers face today. While mid-tier plans might provide a good value for patients, the list of in-network physicians that patients can choose from tends to be limited, essentially a “narrowing” of the network—and almost half of patients appear to be unaware of this fact. According to an April 2015 McKinsey & Company study, 44


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