Various news organizations (for example, Law360) reported on Aetna’s jury verdict against Northern California surgery centers for over-billing the insurer for out-of-network procedures. The jury determined that the surgery center should pay $37.4 million in damages. The complaint by Aetna included allegations that surgery centers waived patient co-pays and other fees, sales of shares to physicians (who received substantial ROI) in addition to the physician’s own fee for service and other “fraud.”
Other lawsuits with similar allegations are pending. United Healthcare Services has a complaint against several Bay Area ASC’s claiming the ASCs’ bills are artificially inflated, that the providers utilizes different charges for different patients (out-of-network charges being the highest), that the ASCs failed to disclose waiver of co-pays, and inappropriate incentives to physicians for referring patients to the ASC.
The insurers in these cases are attempting to utilize the courts to stop out-of-network billings, especially for ASCs. The conduct they are complaining about is a common issue of our medical landscape. Surgery centers are typically physician owned and tend not to have insurance with the typical plans that exist. Physicians will often promote the ASC as providing superior service, especially compared with alternative medical centers and hospitals. In order to encourage the patient to have procedures at a facility which does not accept their insurance, the physician and the ASCs will often assure the patient that they will seek reimbursement from the out-of-network insurance provider and that any service received will be at no cost to the patient. Freed from in-network contracts, these facilities seek their “reasonable fees” from the insurer.
The current litigation will certainly lead to appeals and opinions by courts that will alter the legal landscape. The facts in the Aetna case appear to include evidence of communications between physicians encouraging referrals to the surgery centers, which would appear inflammatory to the jury.
However existing law does not appear to support the insurers claims. For instance, the Accountable Care Act actually requires discounting co-payments for out-of-network emergencies. (“Any cost-sharing requirement expressed as a copayment or coinsurance rate imposed with respect to a participant, beneficiary, or enrollee for out-of-network emergency services cannot exceed the cost-sharing requirement imposed with respect to a patient, beneficiary or enrollee if the services were provided in network.” 45 C.F.R. 147.138.) The California Attorney General that waiver of copayments for out-of-network insurance companies was appropriate. (Dentists routine waiver of co-pay appropriate. 64 Ops. Cal. Atty. Gen. 782 (1981).) Discounts to encourage patient referrals is not impermissible. (People v. Duz-Mor Diagnostic Laboratory, Inc. (1998) 68 Cal. App. 4th 654.) Likewise, it is legal for physicians to refer to surgery centers where they have a financial interest. (California Business Code section 650(d).)
Providers who routinely bill to out-of-network providers should monitor these cases closely. The Courts will be making ground-making decisions in this area in coming months.
By Matt Kinley, Esq, LL.M. Mr. Kinley represents health care clients in Southern California.