Act or React? Rehab Industry Transformation

florida healthcare lawyerBy: Jeff Cohen

By now, it’s not news in Florida that drug and alcohol recovery providers are staring devastation in the face as payers continue to mount non-payment offensives.  As payers one by one march on the industry and starve providers of cash flow for operations, many providers can be expected to shut down.  To make matters worse, as the popular media continues to act as a conduit for gross misrepresentations of industry providers, the public’s affection for the industry can’t be expected to improve.  This makes the future look especially bleak for the industry, and yet the silence and stillness of providers is baffling.

Given the breadth of the payer problem (many simply aren’t paying providers), why are we not seeing a slew of lawsuits filed by providers?  In nearly 30 years as a Florida healthcare lawyer, I’ve never seen a healthcare sector so hammered by insurance companies.  And I’ve never seen it unanswered in court.Continue reading

Houston Court Brings the Heat in Payer Provider Case

bcbs lawsuitBy: Jeff Cohen 

A recent Texas District Court case took the usually frustrating ERISA dynamics applicable in payer provider disputes and upended them in a way that helped the provider.  There (Cigna v. Humble Surgical Hospital, Civ. Action No. 4:13-CV-3291, U.S. Dist. Ct., S.D. Tex., Houston Division), the court was faced with an out of network hospital sued by CIGNA to recover payments made.  In particular, the case involved—

  • An out of network hospital (HSH);
  • HSH set its prices higher than neighboring in network hospitals;
  • HSH billed Cigna members for deductibles and coinsurance at in network rates, but billed Cigna on an out of network basis;
  • Cigna alleged that the billing practices of HSH caused Cigna to pay more than its required share under applicable plans, even though plan members paid little or nothing at all;
  • Cigna also alleged HSH paid owner physicians referral fees to induce patient referrals; and
  • Cigna sought to recover payments made to HSH.

The case is a departure from the usual scenario, which involves (a) providers suing payers for payment and relying on state laws to do so, and (b) provides side stepping those state laws by successfully arguing that the federal ERISA law applies (which usually offers provides less favorable remedies).Continue reading

Tough Trend for Payers = Fairness for Providers

payer fairness for providersBy: Jeff Cohen

The past year has shown a trend towards empowering providers (and even patients) in their claims against payers.  And these developments should serve to bolster the position of many patients and providers, especially behavioral health providers as they raise claims against payers.

Spinedex Case

This 2014 Arizona case addressed the issue of whether a provider had the legal ability (“standing”) to sue United to receive payment for services provided to insureds.  United’s role was to process claims for certain plans.  Spinedex was a physical therapy provider whose patients signed a patient responsibility form and also assigned to Spindex the right to receive payment.  There were different levels of benefits based on whether the patient was insured by United.  Spinedex treated patients, then submitted claims to United.  When claims for payment were denied, Spindex sued.

At the heart of the case was the long-standing issue of whether a provider has standing to sue for services provided to insureds of so called ERISA plans.  “We are aware,” the court wrote, “of no circuit court that has accepted defendant’s argument” [that because Spinedex didn’t seek payment from a patient, the patients don’t have an “injury,” which is required for the providers to sue the payer].    Nevertheless, the court said “yes,” which opened the door to potentially a slew of such lawsuits.

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