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TRANSCRIPT
12/3/2014
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Insurance carriers are used to having POWER….
ERISA & NAMAS But you have a better weapon than they do
WHAT IS ERISA
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ASK 100 MEDICAL BILLING PEOPLE WHAT ERISA IS
It’s something to do with retirement
accounts
ERISA PROTECTS INSURANCE COMPANIES
ASK 100 PEOPLE WHAT ERISA IS
It doesn’t affect me as I only file medical claims
IS IT AN INVESTMENT
THING?
WHAT IS ERISA? ERISA IS A LAW THAT AFFECTS
MORE THAN 80% OF ALL MEDICAL CLAIMS YOU AS AN
AUDITOR WILL DEAL WITH EXCLUDING MEDICARE & MEDICAID
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8 OUT OF 10? SERIOUSLY?
YES – UNLESS YOU WORK IN THE
WASHINGTON DC AREA
• 38% OF PEOPLE IN DC AREA WORK FOR THE GOVERNMENT
• ERISA DOESN’T APPLY IF EMPLOYER IS THE
GOVERNMENT
WHEN IS IT AN ERISA CLAIM?
ONLY 2 CRITERIA 1. Was the health insurance policy provided by
an employer on this claim?
2. Is the employer the government or church?
Is this the only criteria?
1. Was health insurance provided by an employer
Can it be my husband’s
employer that provides it?
It doesn’t matter if the insurance is provided by your
employer or your spouse’s employer
It doesn’t matter if it is union, non union, part
time or full time as long as employer provides it
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1. Was health insurance provided by an employer
Does it matter if it is self-funded
or not?
It doesn’t matter if it is self funded or not.
Does it matter if it is HMO or
PPO?
Nope – It can be HMO or PPO or ACO or any kind of
health insurance plan
What kind of government
job?
If City, County, Parish, State, Federal or any
government employer – ERISA doesn’t apply
What about Workers Comp?
WC is not an employee insurance policy – ERISA
doesn’t apply
2. Is the employer the government or church?
What kind of church?
Any denomination or cult – ERISA doesn’t
apply
2. Is the employer the government or church?
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School owned by a church?
Christian, Catholic or other church schools –
ERISA doesn’t apply
2. Is the employer the government or church?
What % of people work for Gov’t or church?
7% of Americans work for government, <1% work for some kind of church
(U.S. Dept. of Labor, 7/24/2012)
SO – ALL OTHER EMPLOYER PROVIDED
INSURANCE IS COVERED BY ERISA?
YES – WHICH IS WHY MORE THAN 80% OF THE NON MEDICARE AND NON MEDICAID CLAIMS FILED EVERY
DAY ARE ERISA
SO – ERISA DOESN’T APPLY TO MEDICARE OR MEDICAID?
MEDICARE & MEDICAID ARE NOT PROVIDED BY AN EMPLOYER TO AN EMPLOYEE – SO –
ERISA DOESN’T APPLY
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HOW DOES ERISA HELP ME WITH MY INSURANCE CLAIMS?
TELL ME MORE
ABOUT YOUR INSURANCE CLAIMS
They are not YOUR insurance claims. They are ALWAYS the patient’s claims that you are filing on
THEIR behalf.
HOW DOES ERISA HELP ME WITH MY INSURANCE CLAIMS?
But the patient assigned the claim to me – so doesn’t that
make it my claim?
THE PAYMENT MAY BE MADE TO YOU – BUT THE CLAIM BELONGS TO THE POLICHOLDER, WHICH IS A GOOD THING – BECAUSE IT GIVES
YOU MORE POWER!
WHOSE CLAIM IS IT?
PAY ATTENTION, AUDITORS. IT IS THE
PATIENT’S CLAIM!
BECAUSE IT IS THE PATIENT’S CLAIM – THEN NOTHING YOU AS A DOCTOR CAN DO CAN TAKE AWAY
THE CONDITIONS OF THAT POLICY OR THE CLAIM.
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“But, I have contracts with the carriers too”
THE CONTRACT YOU HAVE WITH THE INSURANCE COMPANY CANNOT INTERFERE WITH THE CONTRACT THE PATIENT
(POLICYHOLDER) HAS WITH THE CARRIER – AS IT IS PROTECTED BY FEDERAL LAW
PATIENT
INS. CO. DOCTOR
IS MY CONTRACT INVALID?
IF IT IS AN ERISA CLAIM – THEN, PART OF THE
CONTRACT YOU HAVE HAS NO BEARING ON
THE ERISA CLAIM
THE PATIENT’S POLICY TAKES PRECEDENCE
The Insurance Carrier knows this?
The Legal Department and CEO and COO all know about ERISA.
Most people in the claims department at the
carriers do NOT know ERISA.
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“But I deal with Claims Department”
Never deal with the claims
department. Always correspond
with the CEO of the carrier.
Bert Marshall BCBS CEO 1001 E. Lookout Dr. Richardson, TX 75082 972-766-6900
Patricia Hemingway Hall HCSC CEO 300 East Randolph StreetChicago, IL 60601 312 653-6000 fax: 312 819-1220
HEALTH CARE SERVICE CORP OWNS BCBS TEXAS
“Do Carriers sometimes lie to me?”
Of course
They tell you that you exceeded timely filing or
that state law applies.
They Sometimes Lie!
“Don’t state laws matter?”
If ERISA says something different than state law,
then ERISA takes precendence on ERISA
claims. If ERISA supports state law – use
the state law to your advantage
“but give me an example”
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Assignment of Benefits Laws
1. You accepted assignment 2. Carrier sent check to patient 3. You appeal to carrier 4. Carrier says it is ERISA – so state law n/a 5. You quote 5th Circuit Federal District Court
case from Aug 2006 saying “ERISA does not prevent a defense to insurer’s obligation to follow state law to pay the provider”
http://www.bmbassoc.com
CARRIERS MAY POINT TO ERISA
1. They know that less than 4% of people working in hospitals & clinics know anything about ERISA – including attorneys
2. They hope to take advantage of your ignorance – betting that you are ignorant.
3. You LOVE it when they remind you that this is an ERISA claim…. when you know ERISA
“OK – I THINK I UNDERSTAND SO FAR, LET’S REVIEW”
1. I File ERISA claims every single day – many of them. 2. It is NEVER my claim – but always the patient’s claim 3. If it is an ERISA claim, then the patient’s policy is what
dictates when they pay, how long the filing period is, when they can deny, etc.
4. My contract cannot interfere with the patient’s rights 5. I should deal with the CEO and legal – and not claims
department 6. Insurance companies will lie to me about anything. 7. State law does not over-ride ERISA law
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Carrier says “Investigational”
LOOK AT THE POLICY
IF POLICY DOESN’T LIST THE SERVICE AS EXCLUDED OR
INVESTIGATIONAL – THEY HAVE TO PAY IT.
HOW TO REPLY: INVESTIGATIONAL
• Review Patient Policy • If not listed in policy as investigational – scan that page • Send letter to the CEO 1. Include scanned copy of AOB form from patient 2. Identify that the claim is an ERISA claim, pursuant to 29 CFR 250-503-1 3. Include copy of list of exclusions from patient policy 4. Point out that what they considered investigational is covered & must be
paid 5. Notify them that you are copying the patient’s employer in ten days, since it
is ERISA and the employer has to comply with 29 CFR 250-503-1 6. Notify them that in ten days, you are notifying the state board of insurance
in state where policy was sold, advising that the policy may be a fraudulent policy, asking for an investigator to determine whether policy can continue to be sold
7. Wait for the check
SHOULD WE MAKE WAVES?
“DON’T MAKE WAVES OR WE KICK YOU OUT OF OUR NETWORK OR PLAN”
ERISA MAKES THIS ILLEGAL & CRIMINAL COURT STEPS IN
2432 Coercive or Fraudulent Interference with ERISA Rights -- 29 U.S.C. 1141
“violator restrained, coerced, or intimidated, or attempted to restrain, coerce, or intimidate, a
participant or beneficiary for purposes of interfering with their protected rights”
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“WHAT IF WE’RE NON PAR?”
IF YOU DO NOT HAVE A CONTRACT WITH THE CARRIER – DO NOT SETTLE FOR UCR OR
ANYTHING LESS THAN BILLED
YES – YOU ARE CONFUSED FOR A GOOD REASON. YOU’VE NEVER
HEARD THIS BEFORE!
“A NON PAR DOC CAN GET WHAT?”
WHAT ABOUT STATE BALANCE BILLING
LAWS?
IF IT’S ERISA – ERISA TAKES PRECEDENCE OVER STATE LAW! WHAT DOES THE PATIENT’S POLICY SAY?
ERISA's pre-emption section, 29 U. S. C. §1144(a),
EGELHOFF v. EGELHOFF U.S. Supreme Court, 03/21/2001
ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA
“BALANCE BILLING LAWS?”
“Pursuant to New
Jersey State law,
you are prohibited
from collecting this
from the member.”
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“IF WE’RE NON PAR, THEY WON’T SEND US THE CHECK”
THEY HAVE TO – IF PATIENT ASSIGNS THE CLAIM TO YOU
Louisiana Health Service Indemnity Co (BCBS) vs Rapides Health System in the Fifth Circuit federal Court of Appeals in August 2006
“Nothing in ERISA prevents a participant or beneficiary from assigning his or her rights to welfare benefits, which include health care benefits.” “payment to the beneficiary
is not a defense to the “insurer’s obligation to pay the provider.”
“WHAT IF WE’RE NON PAR?”
If you are non par (not contracted) with the carrier – the patient may have a higher
deductible or co-pay – but that doesn’t mean you will accept less than your billed amount.
There is no “contracted amount”.
“THEN WHY BE CONTRACTED?”
• The hospital may refer to contracted • The patient has a lower deductible • The patient may have lower co-pay • Uhhh… nothing else comes to mind
• But the carrier said they wouldn’t send checks to me if I don’t!
• THEY LIED! EITHER OUT OF INTENT, MALICE OR PERHAPS IGNORANCE
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“WHAT ABOUT RECOUPING?”
"Your failure to do so will result in our offsetting the refund amount from a claim you
have in our system"
YOU do not have any claims in their system. YOUR PATIENTS have claims in their system. You cannot take money away forceably from one neighbor because a different neighbor owes you money. The carrier cannot legally take money payable to one policyholder away from a different policyholder because they feel the first one owes them
“WHO CAN THEY RECOUP FROM?”
JAN 8, 2002 – USSC RULED ON THIS
ERISA § 502(a)(3) Great-West Life &
Annuity Insurance Co. v. Knudson
“plaintiff "cannot enforce a constructive trust of or an equitable lien upon other property of the [defendant]." Justice
Scalia, U.S. Supreme Court decision
“WHY DO YOU LET THEM RECOUP?”
“BECAUSE THEY DO IT WITHOUT MY PERMISSION.
I CAN’T STOP THEM!”
Usually with just a simple fax to their CEO and Legal department,
you can stop them!
BUT YOU HAVE TO ACT AS SOON AS YOU GET THEIR DEMAND!
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STOP THE TAKE-BACK!
DEAR CEO, We received notice that your company intends to recoup money that you claim is owed to you by one policyholder of an ERISA policy from another policyholder of a different ERISA policy. Surely, as the CEO, you are aware of ERISA law and 29 CFR 2560-503-1? You may want to check with your legal department and have them check on a U.S. Supreme Court decision of Great-West Life & Annuity Ins. Co. v Knudson dated Jan 8, 2002 and advise you. You may also want to check on the federal court decision in 3/28/2014 of PCA v BCBSA and see how many hundreds of millions of dollars were agreed upon by the court that the insurance company had to pay before your company makes a huge mistake. Should your company do as they have threatened in their letter to us, we will be advising the patient, their employer and our attorneys to consider federal court relief immediately. A copy of this notice is being sent to the member so they can present it to their employer.
“WHAT WAS PCA V BCBSA?”
Blue Cross and their subsidiaries were sued in a class action lawsuit by the Pennsylvania Chiropractor Association
BCBS, like many carriers had sent letters to doctors saying something
similar to “pay us back what we say you owe us in 14 days or we’ll recoup from another claim”.
Not only was that in violation of the USSC decision of 2002, but also violates the USSC case of Davila v Aetna and Calad v Cigna (member
“policyholder” has the right to exhaust all appeals).
“WHAT IF WE’RE NON PAR?”
An ABD must be sent to the patient by the carrier, giving the patient a chance
for an appeal and worded in such a way for the patient to understand.
A refund request is an ABD (adverse
Benefit Determination)
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“you have at least 60 days….”
Your plan must give you the reason for denial in writing and in a manner you can understand. It also must give you a reasonable
opportunity for a fair and full review of the decision.
“THE CEO & LEGAL DEPT KNOW THIS”
People in their claims department do not
know what ERISA law requires or what the USSC decisions are. Why talk to them?
DEAL WITH THE CEO AND GET THINGS
DONE
“WHAT ABOUT TIMELY FILING?”
The contract YOU have with the carrier doesn’t dictate timely filing
on the ERISA claim. Only the patient’s policy dictates that – so
what does the policy say?
YES – YOU need to look at the patient’s policy. It is MORE important than the contract you signed with the carrier. It’s the patient’s policy and
the patient’s claim.
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RESPOND ON TIMELY FILING
Dear CEO: Claim # xxxxx is an ERISA claim, subject to 29 CFR 2560-503-1. Your claims department denied this for timely filing, contrary to the patient’s policy & SPD which says the claim must be filed within fill in what policy says. These claims were submitted to your company past what you consider timely filing limits. The claim submission timeframe is under the jurisdiction of ERISA as defined in Federal Regulation 29 CFR 2560-503-1, so therefore the patient’s SPD dictates any timely filing limits. If you wish we are more than happy to advise the employer to request the Office of Insurance regulation and the Secretary of labor, investigate this matter where your company is claiming that you and I can enter into an agreement that removes the protections of ERISA from this employee’s benefits. We ask that you review the denial of these health benefit claims that were submitted within the ERISA time limits of each member and reverse the denials. This letter is not an appeal of the health benefit denial. We reserve the right to enforce each member's right to appeal the denial of their ERISA health benefit in a Federal Court of Law. A copy of your company's letter is being provided to your member so that they can present it to their employer and legal representative.
“WHAT ABOUT BUNDLING?”
“Carriers sometimes bundle things that are not “normally” bundled by Medicare and the other 99% of carriers. Can they do it and get
away with it?”
They can get away with it IF YOU LET THEM. Don’t let them “UNJUSTLY DENY” the claim. Remember – if they
deny ONE THING on the claim – the entire claim is considered an ADVERSE BENEFIT DETERMINATION – and
ERISA can be used!
“IS BUNDLING LEGAL?”
Due to standards in the industry, it is expected that some things will be bundled together –
but using what standards?
CMS & MEDICARE use the CCI (Correct Coding Initiative) edits, as do most carriers – but some carriers make up their
own edits – such as McKesson and some workers comp authorities. If you have a contract with a carrier – you may
be agreeing to those edits. At other times, the clearinghouse you use may be using them. It’s important
that you know what edits you are subject to
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EDITS TO THINK ABOUT
36415 with any Clinical Lab test (not part of CCI – but used by McKesson)
G0008 with an E&M SERVICE (not part of CCI – but used by once carrier)
93000 with 99211 (part of CCI edits – but reportable with modifier 25 on 99211)
“APPEAL BUNDLING DENIAL?”
Dear CEO: Re: ERISA Claim # xxxxxxx subject to 29 CFR 2560-503-1 Pursuant to 29 CFR 250-503-1, we are attaching a copy of a written authorization from your member regarding the adverse benefit determination and making a discovery demand for the following information, which must be answered within 30 days: • Name & credential of your employee who performed the ABD., • A legible copy of your company’s coding & bundling policy & any all documents used to perform
health benefit coding bundling denials, • If your company used an outside consultant, the name & credentials of said consultant and all
documents provided to you by said consultant.
As you are aware, refusal to comply could result in a fine as administered by a federal court of law, in addition to a request for a full investigation by the EBSA & Dept of Labor. Your member’s SPD clearly shows the service as being a covered service. It could be interpreted by a judge that your company is “unjustly denying” payment for this covered service. Although this is an ERISA claim, we are also copying the employer in case they wish to file an action with the State Insurance Commissioner to determine if you refused to honor the member’s policy.
“WHAT IF THEY DOWNCODE US?”
A claim with any code down-coded is an ADVERSE BENEFIT DETERMINATION. It doesn’t matter if they paid on the claim – as long as they
didn’t pay correctly on every code billed.
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“HOW DID THEY DOWNCODE US?”
• Did they request additional records from you?
• If they did – who looked at those records?
• What are the credentials of those that looked at the records?
• What standards or guidelines did they use to downcode you?
• Was the carrier “unjustly enriched” by that decision?
APPEAL THE DOWN-CODE
Dear CEO: Re: ERISA Claim # xxxxxxx subject to 29 CFR 2560-503-1 Pursuant to 29 CFR 250-503-1, we are attaching a copy of a written authorization from your member regarding the adverse benefit determination and making a discovery demand for the following information, which must be answered within 30 days: • Name & credential of your employee who performed the ABD., • A legible copy of your company’s coding & DOWN-CODING policy & any all documents used to
perform health benefit coding down-coding denials, • If your company used an outside consultant, the name & credentials of said consultant and all
documents provided to you by said consultant.
As you are aware, refusal to comply could result in a fine as administered by a federal court of law, in addition to a request for a full investigation by the EBSA & Dept of Labor. Your member’s SPD clearly shows the service as being a covered service. It could be interpreted by a judge that your company is “unjustly denying” payment for this covered service. Although this is an ERISA claim, we are also copying the employer in case they wish to file an action with the State Insurance Commissioner to determine if you refused to honor the member’s policy.
“MEDICAL NECESSITY ABDs?”
“I like that you’re thinking of the terminology “ABD”. You should!”
• MEDICAL NECESSITY ABD IS REALLY NO DIFFERENT THAN AN ABD BASED ON A BUNDLING ISSUE.
• SOMEONE AT THE CARRIER SAID IT’S NOT MEDICALLY NECESSARY • YOUR MEDICAL PROVIDER BELIEVES IT IS • IS IT COVERED BY THE POLICY AS A COVERED BENEFIT? • IF SO - WHO AT THE CARRIER LEVEL DECIDED IT WASN’T
NECESSARY, & • WHAT ARE THEIR CREDENTIALS & • USING WHAT BASIS, DID THEY MAKE THE DECISION?
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MEDICAL NECESSITY REPLY Dear CEO: Re: ERISA Claim # xxxxxxx subject to 29 CFR 2560-503-1 Pursuant to 29 CFR 250-503-1, we are attaching a copy of a written authorization from your member regarding the adverse benefit determination and making a discovery demand for the following information, which must be answered within 30 days: • Name & credential of your employee who performed the ABD., • A legible copy of your company’s coding & DOWN-CODING policy & any all documents used to
perform health benefit coding down-coding denials, • If your company used an outside consultant, the name & credentials of said consultant and all
documents provided to you by said consultant.
As you are aware, refusal to comply could result in a fine as administered by a federal court of law, in addition to a request for a full investigation by the EBSA & Dept of Labor. Your member’s SPD clearly shows the service as being a covered service. It could be interpreted by a judge that your company is “unjustly denying” payment for this covered service. Although this is an ERISA claim, we are also copying the employer in case they wish to file an action with the State Insurance Commissioner to determine if you refused to honor the member’s policy.
“Is my AOB sufficient?”
There are 94 federal judicial districts, and 12 Circuit Courts
Two (7th and 11th) Circuit Courts have ruled that the standard AOB used by most doctors and hospitals are acceptable in a
ERISA cases.
The 3rd circuit court of appeals has held, in dicta, that a generic "assignment of benefits" is insufficient to provide
derivative standing for a provider.
The others have not ruled. Best to be safe!
ASSIGNMENT OF BENEFITS & RELEASE OF MEDICAL & PLAN DOCUMENTS
LEGAL ASSIGNMENT OF BENEFITS AND RELEASE OF MEDICAL AND PLAN DOCUMENTS
• In considering the amount of medical expenses to be incurred, I, the undersigned, have insurance and/or employee health care benefits coverage with the above captioned, and hereby assign and convey directly to Dr. Humsalot all medical benefits andunderstand that I am financially responsible for all charges regardless of any applicable insurance or benefit payments. I hereby authorize the doctor to release all medical information necessary to process this claim. I hereby authorize any plan administrator or fiduciary, insurer and my attorney to release to such doctor and clinic any and all plan documents, insurance policy and/or settlement information upon written request from such doctor and clinic in order to claim such medical benefits, reimbursement or any applicable remedies. I authorize the use of this signature on all my insurance and/or employee health benefits claim submissions.
• I hereby convey to the above named provider to the full extent permissible under the law and under the any applicable insurance policies and/or employee health care plan any claim, chose in action, or other right I may have to such insurance and/or employee health care benefits coverage under any applicable insurance policies and/or employee health care plan with respect to medical expenses incurred as a result of the medical services I received from the above named doctor and clinic and to the extent permissible under the law to claim such medical benefits, insurance reimbursement and any applicable remedies. Further, in response to any reasonable request for cooperation, I agree to cooperate with such doctor and laboratory in any attempts by such doctor and clinic to pursue such claim, chose in action or right against my insurers and/or employee health care plan, including, if necessary, bring suit with such doctor and clinic against such insurers and/or employee health care plan in my name but at such doctor and lab's expenses.
• This lifetime assignment will remain in effect until revoked by me in writing. A photocopy of this assignment is to be considered as valid /or insurance reimbursement, if any, otherwise payable to me for services rendered from such doctor and clinic. I as the original. I have read and fully understand this agreement.
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ASSIGNMENT OF BENEFITS & RELEASE OF MEDICAL & PLAN DOCUMENTS
• WHO SHOULD SIGN THIS?
• WHEN SHOULD THEY SIGN IT?
• HOW LONG DOES THIS AOB/RMPD LAST?
ASSIGNMENT OF BENEFITS & RELEASE OF MEDICAL & PLAN DOCUMENTS
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12/3/2014
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