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Seeking Compensation for Out of Network Claims: A Primer for Providers

out of network litigationBy: Matt Fischer

Litigation involving out of network claims by providers, also referred to as “non-participating” or “non-par”, continues to be rampant into 2019.  Complexity of plan administration, increased state and federal rule making, and rising costs are resulting in increased litigation.  A recurring issue: unpaid claims disputes.

Many physicians come to the conclusion that some contracts aren’t worth entering.  More and more physicians are opting out of participating provider contracts or have chosen not to participate in the first place.  Reimbursement is usually the prime reason.  The law that controls much of the litigation surrounding these disputes is the Employee Retirement Income Security Act of 1974 (ERISA).  ERISA is a federal law that sets minimum standards for most plans along with fiduciary responsibilities for plan sponsors.  Under ERISA, a “Summary Plan Description” must be created for each plan that sets forth the rights and benefits of each plan member and importantly, how out-of-network reimbursement is determined. 

When out-of-network services are first elected, providers typically ask a patient to sign an “assignment” of benefits and rights.  This document essentially makes the provider the beneficiary of the ERISA plan and any non-ERISA contracts.  When these rights are granted, the provider becomes eligible to be reimbursed directly by a plan and also, able to pursue the plan participant’s rights, including litigation.

Provider billing litigation requires careful consideration.  Payors often must determine fair and reasonable pricing to compensate out-of-network providers and to avoid unnecessary litigation.  Filing suit under ERISA also means making sure other pre-suit requirements are met such as exhausting administrative remedies.  By knowing the potential challenges to out-of-network reimbursement, providers can better manage its risk and expectations.  And, thus lessens the probability of chasing payment.