ERISA or PPO?
Managed Care Slavery
or ERISA Superhero
MAXIMAL REIMBURSEMENT
THROUGH COMPLIANCE
© JIN ZHOU, President,
ERISAclaim.com
November 19, 2007
One of the most misguided and financial suicidal
concept in healthcare reimbursement is that health care providers are
historically and fundamentally as well as legally taught and convinced
that any and all denials or reductions of your claims with or through
managed care entity are a PPO discount, a consensual compromise or
defeat, instead of ERISA benefits denial, in whole or in part, based
on relevant plan benefits provisions governed under ERISA, the federal
as a public policy, even though every managed care contract, managed
care network medical policy, managed care provider manuals have
specifically and unambiguously disclaimed and instructed that provider
contracts are for provider voluntary reduction from the total amount
that each members benefit plan has already approved as benefits
reimbursement, specifically based on each individual patient/member
benefits plan provisions, Summary Plan Description (SPD),
governed
by federal law ERISA, for any ERISA regulated employer sponsored
health benefits plan in private sector.
ERISA is a federal law, governing ERISA plans,
health insurance/benefits through employment in private sectors.
The simplest way to understand and identify an ERISA plan is if your
patient obtained health insurance from employment in private sector,
from both self-insured and fully insured (through purchase of
insurance) benefits plans.
SPD (Summary Plan Description) is ERISA version
of insurance policy, SPD controls insurance/benefits coverage,
limitation, and conditions for reimbursement. Each individual patient
eligibility, qualification, coverage, limitation, and circumstances
for disqualification are specifically determined by the terms and
conditions of each individual plan SPD. Any managed care
contract, PPO, POS, EPO, P4P and HMO, may not be intended, or shall
not be construed, to supercede, alter or limit the rights or remedies
otherwise available to any Person under
§ 502(a) of ERISA or to supercede in any
respect the claims procedures of § 503 of ERISA.
Managed care contract between healthcare
providers and manage care entities or organizations, or even
directly with ERISA plans or insurers, are legally a third-party
business contract, independently and separately from an ERISA plan. A
managed care contract is primarily used to
solicit or offer provider discount in exchange of wholesale
referral (network access) and prompt reimbursement.
Any claim denials or delays for plan coverage,
limitation, medical necessity, UCR, network provider access,
coordination of benefits, pre-existing condition, eligibility
determination, anything about money and rights for any participant and
beneficiary, except for pure PPO discount, are governed by ERISA, as a
public policy, and determined based on each individual benefits plan
provisions, however if all of the above are not in dispute, or moot,
but there is a pure PPO or managed care discount, that would be a
provider PPO dispute, determined by each individual manage care
contract, governed by specific individual state laws where contract
was entered and choice of law was agreed by parties of such contract.
Therefore, any PPO discount or dispute is
not triggered unless or until ERISA benefits questions or disputes are
resolved or moot.
As a national
insanity or stupidity in US health care crisis, managed care
contracting has been used to hijack, interfere, substitute, replace
and discount or deceit the compliance and enforcement of ERISA, a
federal law as public policy.
Even as
950,000 physician class-action lawsuit settled with almost every
insurance company and MCO's with following captioned final agreement
and clarification for most of all managed care contracting:
AETNA SETTLEMENT AGREEMENT (pdf, 97 pages), dated as of May 21, 2003 by and among AETNA INC., THE
REPRESENTATIVE PLAINTIFFS, THE SIGNATORY MEDICAL SOCIETIES AND CLASS
COUNSEL
"7.10. New Dispute Resolution Process for
Physician Billing Disputes.
a."......Nothing contained in this § 7.10 is intended, or shall be
construed, to supercede, alter or limit the rights or remedies otherwise
available to any Person under
§ 502(a) of ERISA or to supercede in any
respect the claims procedures of § 503 of ERISA."
[page 25]
Healthcare providers have continued to engage
voluntary and consensual financial suicide, by thinking and saying:
"What ERISA? but we have signed a contract, it is
our choice, we have no right"
In order to obtain maximum reimbursement for what
a provider is legally entitled to under applicable federal and state
laws, a provider must understand that your managed care contracting is
only good for pure PPO discount, ERISA, not your managed care
contract, governs, controls and determines the policy coverage,
medical necessity, experimental and investigational, UCR, pre-existing
condition, coordination of benefits, provider and network
access-choice of providers, urgent care, and everything has the your
patient rights under the plan and "denial of benefits".
Every healthcare provider must understand ERISA
in order to avoid financial suicide or crisis in voluntary consensual
fashion through managed care contracting.
US SUPREME
COURT UNANIMOUSLY CONCLUDED THAT ERISA Governs and Controls All of
Your Money Dispute, Preempts and Invalidates or Supersedes 100 Percent
of Your State Laws and Managed Care Contracting, if inconsistent or
contrary to ERISA and SPD
Aetna Health Inc. v. Davila
06/21/04
Opinion of the
US Supreme Court
"Held:
Respondents’ state causes of action fall
within ERISA§502(a)(1)(B), and are therefore completely
pre-empted by ERISA §502 and removable to federal court.
Pp. 4–20."
"We hold that
respondents’ causes of action, brought
to remedy only the denial of benefits under
ERISA-regulated benefit
plans, fall within the scope of, and are completely pre-empted
by, ERISA §502(a)(1)(B),......"
Egelhoff v. Egelhoff
“Held: The state statute has a connection with
ERISA plans and is therefore expressly pre-empted. Pp. 4-10.
(a) ERISA's pre-emption section, 29 U. S. C. §1144(a), states that
ERISA "shall supersede any and all State laws insofar as they may now
or hereafter relate to any employee benefit plan" covered by ERISA. A
state law relates to an ERISA plan "if it has a
connection with or reference to such a plan." Shaw v. Delta Air
Lines, Inc., 463 U. S. 85, 97.”
“To determine whether there is a forbidden
connection, the Court looks both to ERISA's objectives as a guide to
the scope of the state law that Congress understood would survive, as
well as to the nature of the state law's effect on ERISA plans.
California Div. of Labor Standards Enforcement v. Dillingham Constr.,
N. A., Inc., 519 U. S. 316, 325. Applying this framework,
the state statute has an impermissible
connection with ERISA plans, as it binds plan administrators to a
particular choice of rules for determining beneficiary status.”
To decide or determine if your dispute is
common-law PPO or ERISA dispute,
in PERALTA V HISPANIC BUSINESS, The Ninth Circuit has explained that
common law claims do not “relate to” an ERISA plan when:
-
“the “adjudication of the claim required no interpretation of the
plan”
-
“no distribution of benefits”, and
-
“no dispute regarding any benefits previously paid”.
EVERY
MANAGED CARE CONTRACT IS SUBJECT TO ERISA AND PLAN SPD FOR
REIMBURSEMENT FROM AN ERISA PLAN.
SMS Fresno Community Hospital and Medical Center
v.
John Souza
EASTERN
DISTRICT OF CALIFORNIA
July 3,
2007
“ALLEGATIONS AND CAUSES OF ACTION
According
to the complaint, UMC entered into a contract with Blue Cross of
California (the “Blue Cross Contract”) pursuant to which it agreed
to provide medically necessary services, equipment and supplies to
individual enrollees of health plans registered with Blue Cross as
“Payor” signatories to the Blue Cross Contract. Teamsters was a
Payor signatory to the Blue Cross Contract. In exchange, Teamsters
agreed to pay UMC for the medically necessary services, equipment
and supplies rendered to the individual enrollees in Teamsters’
health plan. The negotiated rates under the Blue Cross Contract
provided for such services to be paid at a ten percent discount. UMC
agreed to submit bills to Teamsters and/or Teamsters’ agent
reflecting the ordinary total billed charges for services rendered
to the individual enrollees of Teamsters’ health plan on a claim
form, and Teamsters would then process and pay each claim at the ten
percent discounted rate. Complaint, ¶¶ 9-12. Delta Health Systems
was the third party administrator for the Teamsters’ plan.”
“The
complaint alleges that Teamsters failed to pay for medical treatment
provided to two patients enrolled in Teamsters’ health plan. UMC
alleges that Teamsters verified that these patients were enrolled in
their health plan yet failed to pay the final bills. After
application of the discount, UMC alleges that it is owed a total of
$38,952.93 ($43,281.03 prior to discount).”
"UMC
alleges causes of action for breach of contract,
quantum meruit and negligent misrepresentation against
Teamsters. It alleges intentional interference with contractual
relations against Delta Health Systems based on the allegation that
Delta convinced Teamsters to withhold payment on the pretext that
they could do so pending the completion and delivery of certain
forms."
"In
PERALTA V HISPANIC BUSINESS,
The Ninth Circuit has explained that common law claims do not
“relate to” an ERISA plan when:
-
“the “adjudication of the
claim required no interpretation of the plan”,
-
“no distribution of
benefits”, and
-
“no dispute regarding any
benefits previously paid”.
"Section
6.14 of the Blue Cross Contract provides as follows:
BLUE CROSS
agrees to verify to HOSPITAL a person's BLUE CROSS membership and
to identify for HOSPITAL, based upon information provided by
HOSPITAL, waivered conditions, current balance of lifetime maximum
and any dollar limits applicable under the relevant Benefit
Agreement. . . . A guarantee of eligibility is not a guarantee of
payment. If HOSPITAL is notified that the member is eligible,
HOSPITAL is entitled to payments for services rendered, covered
under, and subject to the exclusions and limitations of the
relevant Benefit Agreement.”
[Benefit
Agreement = Summary Plan Description, SPD - by ERISAclaim.com]
“CONCLUSION
Based on
the above, the Court finds that the First, Second and Third Causes
of Action are preempted by ERISA. UMC’s motion to remand is
therefore DENIED.”
PPO Contract
with Insurance Verification and Precertification = PPO or ERISA? =
ERISA!
EVERY MANAGED-CARE CONTRACT DISPUTE,
CLASS-ACTION LAWSUIT, SETTLED WITH CONCLUSION THAT ERISA AND SPD
CONTROL YOUR PPO.
A.
AETNA SETTLEMENT AGREEMENT (pdf, 97 pages), dated as of May 21, 2003 by and among AETNA INC., THE
REPRESENTATIVE PLAINTIFFS, THE SIGNATORY MEDICAL SOCIETIES AND CLASS
COUNSEL
"7.10. New Dispute Resolution Process for
Physician Billing Disputes.
a."......Nothing contained in this § 7.10 is intended, or shall be
construed, to supercede, alter or limit the rights or remedies otherwise
available to any Person under
§ 502(a) of ERISA or to supercede in any
respect the claims procedures of § 503 of ERISA."
[page 25]
7.11. Medical Necessity External
Review Process.
"(c) Notwithstanding
the provisions of § 7.11(a), Physicians
may not seek review of any claim for which the Plan Member (or his or
her representative) has filed suit under § 502(a) of ERISA. In
that event, or if such a suit is subsequently initiated, the Plan
Member’s lawsuit shall go forward and the
Physician’s claims shall be dismissed and may not be brought by or on
behalf of the Physician in any forum; provided that such
dismissal shall be without prejudice to any Physician seeking to
establish that the rights sought to be vindicated in such lawsuit belong
to such Physician and not to such Plan Member.
(d)
Nothing contained in this § 7.11 is intended, or shall be construed, to
supercede, alter or limit the rights or remedies otherwise available to
any Person under § 502(a) of ERISA or to supersede in any respect the
claims procedures under § 503 of ERISA.
e. Company shall maintain an internal
appeals process for medical necessity denials and shall disclose
such process on the Public Website. Company shall adjudicate all such
appeals of medical necessity denials on the timeframes that are
applicable to Plans
subject to ERISA, regardless of whether such
Plans are actually subject to ERISA......." [page 30]
Aetna Settlement Claim Form (pdf)
B.
CIGNA SETTLEMENT
(pdf, 150 pages )
(doc)
"7.10
Dispute Resolution Process for Physician Billing Disputes.
a. CIGNA
HealthCare shall implement an independent, external billing dispute
review process (the “Billing Dispute External Review Process”) for
resolving disputes with Class Members concerning the application of
CIGNA HealthCare’s coding and payment rules and methodologies to (i)
patient specific factual situations, including without limitation the
appropriate payment amount when two or more CPT® Codes are billed
together, or whether the Class Member’s use of modifiers is appropriate,
or (ii) any Retained Claims, so long as such Retained Claims are
submitted by the Physician to the Billing Dispute External Review
Process prior to the later to occur of either ninety (90) days after
Final Approval or thirty (30) days after
exhaustion of CIGNA HealthCare’s internal appeals process. Each
such matter shall be a “Billing Dispute.” The Reviewer (as defined
below) shall not have jurisdiction over any disputes that are not
patient specific application of Claim Coding and Bundling Edits,
including without limitation those disputes that fall within the scope
of the Medical Necessity External Review Process set forth in Section
7.11 of this Agreement, disputes about the submission of Clinical
Information that fall within the scope of Section 7.12, Compliance
Disputes and disputes concerning the scope of Covered Services.
Nothing contained in this Section 7.10 is
intended, or shall be construed, to supersede, alter or limit the rights
or remedies otherwise available to any Person under § 502(a) of ERISA or
to supersede in any respect the claims procedures of § 503 of ERISA.
"(3)
Time Limits for Completing Internal Appeals.
All internal
appeals shall be completed within the time limits required by
regulations issued by the Department of Labor, even those
internal appeals for which ERISA is not applicable.
[page 50]
(3) Notwithstanding the provisions of this Section
7.11, Class Members may not seek review of any claim for which the CIGNA
HealthCare Member (or his or her representative) has filed suit under §
502(a) of ERISA or other suit for the denial of health care services or
supplies on Medical Necessity grounds. In that event, or if such a suit
is subsequently initiated, the CIGNA HealthCare Member’s lawsuit shall
go forward and the Class Member’s claims shall be dismissed and may not
be brought by or on behalf of the Class Member in any forum; provided
that such dismissal shall be without prejudice to any Class Member
seeking to establish that the rights sought to be vindicated in such
lawsuit belong to such Class Member and not to such CIGNA HealthCare
Member. [page 52]
"(4) Nothing contained in
this Section 7.11 is intended, or shall be
construed, to supersede, alter or limit the rights or remedies otherwise
available to any Person under § 502(a) of ERISA or to supersede in any
respect the claims procedures under § 503 of ERISA."
[page 53]
Anti-balance Billing Instruction
to Non-participating Physicians (page 80-81)
"p. Participating Physician Status Dependent Upon Existence of
Contracts; Limitations on Obligations of Non-Participating Physician.
CIGNA HealthCare agrees that it will treat a Class Member as a
Participating Physician only in those circumstances in which the Class
Member is a party to a written contract with CIGNA HealthCare or with an
intermediary with which CIGNA HealthCare has a written contract. CIGNA
HealthCare further agrees that at least through the Termination Date, it
will not rent its networks to any other managed care company or health
insurer for the purpose of providing health care services or supplies to
any person who is not a CIGNA HealthCare Member; provided that nothing
in this sentence shall prevent CIGNA HealthCare from making its networks
available among the various current and future Subsidiaries of CIGNA
Corporation; and provided, further, that nothing in this sentence shall
be held to apply to a situation in which a CIGNA HealthCare customer
elects to make payments on claims in respect to provisions of health
care services or supplies to a CIGNA HealthCare Member through a third
party administrator or where CIGNA Behavioral Health provides mental
health services for another health insurance company or other entity. No
affirmative obligation that this Section 7 imposes on a Participating
Physician shall apply to Non-Participating Physicians unless and until,
and then only to the extent that, with regard to each individual claim,
such Non-Participating Physician submits or transmits to CIGNA
HealthCare a claim for payment which designates therein that the
Non-Participating Physician has accepted an Assignment of the CIGNA
HealthCare Member’s benefits as payment for that individual claim.
q. Effect of Assignment of Benefits.
The existence of an Assignment of Benefits authorization, whether or not
submitted by the Non-Participating Physician to CIGNA HealthCare,
does not constitute in and of itself full or
partial payment of the Non-Participating Physician’s fee (unless so
agreed between the Non-Participating Physician and the CIGNA HealthCare
Member), does not create an implied contract between the
Non-Participating Physician and CIGNA HealthCare, and does not limit the
Non-Participating Physician’s fee to any fee schedule. The
Non-Participating Physician retains the right to elect either to collect
the Non-Participating Physician’s full fee from the CIGNA HealthCare
Member or collect partial payment from CIGNA HealthCare and the balance
from the CIGNA HealthCare Member (“balance bill”)."
|
Aetna +
CIGNA
Settlement
Demystified
© 2004 Jin Zhou, ERISAclaim.com
Settlements =
ERISA + 3
E. B.
Settlements =
ERISA + 3
E. B.
(Click
on each hyperlinks for details)
"Aetna
and CIGNA Settlement Secrets"(www.aetna.com)
Aetna ERISA "Talking
Points" (www.aetna.com) |
-
ERISA stands for
Employee Retirement Income Security Act
-
E. B. = External Boards (of
Reviews) (§7.10-7.11):
1) Medical Necessity, 2)
Billing & Coding and
3)
Policy
Coverage
-
Settlements
Only for
MCO/Provider Contract Disputes
-
Settlements
Not for
Patient Coverage/ERISA Disputes, (§7.10-7.11)
-
Patient
Disputes =
ERISA/Coverage/Medical
Necessity/Bundling
& Down Coding
-
Provider
Disputes =
PPO Discount/HMO Capitation/Provider Relationship
(DOL FAQ A8)
-
Patient
Disputes
≠
Provider
Disputes, (DOL FAQ A8); Provider/MCO Contract
(PPO/HMO) Disputes are
not Triggered
until Patient
ERISA Disputes With the
ERISA Plan Are
100% Resolved or Moot (DOL FAQ C12)
(PASCACK VALLEY HOSPITAL, INC.
v LOCAL 464A UFCW WELFARE REIMBURSEMENT PLAN
(3rd Cir. 11/01/2004),
Northeast Hosp. Authority v. Aetna Health Inc.,
(October
17, 2007)
-
External
Reviews (3 E. B.)
Are Not
Available until
Internal Reviews (ERISA) Completed,
(GAO)
-
ERISA =
Federal Law Mandate;
External
Reviews
= State Law Mandate, (GAO)
-
No
ERISA Compliance =
No Rights for Any One
|
EVERY
MANAGED CARE CONTRACT AND MANAGE CARE MEDICAL POLICY HAVE TOLD YOU
ERISA & SPD CONTROLS YOUR PPO OR HMO.
Aetna Clinical Policy Bulletins
Agree to terms and conditions
“Each benefit plan defines which services
are covered, which are excluded, and which are subject to dollar
caps or other limits. Members and their providers will need to
consult the member's
benefit plan to determine if there are any exclusions or
other benefit limitations applicable to this service or supply."
"The conclusion that a particular service or
supply is medically necessary does not constitute a representation
or warranty that this service or supply is covered (i.e., will be
paid for by Aetna) for a particular member.
The member's benefit plan
determines coverage. Some plans exclude coverage for services
or supplies that Aetna considers medically necessary.
If there is a discrepancy
between a Clinical Policy Bulletin (CPB)
and a member's plan of benefits, the benefits plan will govern."
CIGNA - Coverage Positions/Criteria
"The terms of a participant's particular benefit
plan document [Group Service Agreement (GSA), Evidence of
Coverage, Certificate of Coverage,
Summary Plan Description (SPD) or similar plan
document] may differ significantly from the standard benefit
plans upon which these Coverage Positions are based.
If
these Coverage Positions are inconsistent with the terms of the
member's specific benefit plan, then the terms of the member's
specific benefit plan always control."
UnitedHealthcare Medical Policies
"By clicking "I agree," you agree to be bound by
the terms and conditions expressed below, in addition to our
Site Use Agreement.
UnitedHealthcare medical policies have been made available to
you as a general reference resource. When reading these policies
you agree that:
Our Medical Policy is not your patient's Benefit Plan.
Your patient's medical
benefits are governed and determined by a benefit document,
either a Certificate of Coverage or a
Summary Plan Description. You should not rely on
the information contained in this Web site section to determine
your patient's medical benefits.
-
Federal and state mandates and the patient’s
benefit document take precedence over these policies.
-
The patient’s benefit document lists the specific
services that have coverage limits or exclusions.
Our Medical Policy does not address every situation and
individuals should always consult their physician before making
any decisions on medical care."
MORE THAN 60% OF CLAIM DENIALS ARE NOT PPO
DISCOUNT BUT ERISA AND SPD GOVERNED POLICY EXCLUSION, MEDICAL
NECESSITY, NETWORK ACCESS (CHOICE OF PROVIDERS), ALTHOUGH MOST EOB's
(EXCLAMATION OF BENEFITS) MAY LABEL THESE BENEFITS DENIAL AS PPO
DISCOUNTS.
The
Latest AMA (PSA) Managed Care Hassles Survey through nationwide state
medical associations and national medical specialty societies identified
the most popular and important managed-care claim denials and delays.
|
Top Seven Issues through
National Medical Specialty Societies |
|
Rank |
Problems Reported By
Popularity Rank |
% |
|
1 |
Bundling |
67% |
|
2 |
Medical Necessity Decision
Denials |
43% |
|
3 |
Prompt Payment |
43% |
|
4 |
Administrative Hassles |
33% |
|
5 |
Coding Issues |
24% |
|
6 |
Downcoding |
19% |
|
7 |
Bargaining Lack of
Negotiation Power |
14% |
|
Top Eight Most Importantly & Frequently Listed
Issues through
State Medical Associations |
|
Rank |
Problems Reported By
Importance Rank |
|
1 |
Downcoding & Bundling |
|
2 |
Prompt Payment |
|
3 |
Lack of Budgeting Power |
