OR Excellence - Where Leaders Meet, Learn and Grow Together

Hyatt Regency Coconut Point, October 12-14, 2016

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Getting the Upper Hand in Billing Litigation

Elizabeth Lemoine, J.D.

Elizabeth Lemoine, J.D.

Getting the Upper
Hand in Billing Litigation

Defend yourself against payors who deny and delay payments.

As insurance companies continue to implement new ways to avoid paying your facility what it deserves, you may be left wondering what you can do to combat the dirty tricks. In the presentation "Fighting Back Against Insurers' Aggressive Tactics," Elizabeth Lemoine, JD, will discuss sure-fire ways to defend your reimbursements against payors' strong-arm tactics.

  • Understand the legal foundations. A lot of facility leaders may not have a very good understanding of the legal relationship between third-party payors and healthcare providers. For example, knowing the difference between state-regulated insurance plans and Employee Retirement Income Security Act (ERISA) plans helps define how your rights may be restricted and how to formulate billing and appeal strategies. It's also important to understand how good recordkeeping can make or break claims for non-payment, and what the current trends are in billing litigation.
  • Different plans, different options. The litigation process as it relates to state-regulated plans versus ERISA plans differs in a few ways. If the patient has a state-regulated plan, facilities have more options available when it comes to litigation, such as being able to file in state court and have traditional bad faith laws apply. ERISA governed plans, however, are subject to federal laws, which can be more limited. The lawsuit is filed in federal court and you often don't get a trial at all. If you do, there is no jury trial, and discovery — the process of gathering evidence — is very limited, if not prohibited altogether. I'll hit on other important distinctions at the conference.
  • Are you in or out? It's also important to understand how being in-network versus out-of-network affects your rights when it comes to billing litigation. If you're an in-network provider, you can claim for breach of your provider agreement if the payor breaks your contract. You can also rely on "prompt pay" laws, which set a deadline on when claims must be paid. On the other hand, out-of-network providers must be more vigilant about securing assignment of benefits forms from patients and ensuring those forms are broad in the rights they convey.
  • Protect against overpayment litigation. There has been an increase in overpayment or recoupment litigation brought on by payors. Since claims are submitted electronically, health insurance carriers can audit and analyze payment trends more easily than ever before. Because payors can reach back 3 years and recoup claims that were allegedly "overpaid," it's important to know that upticks in your reimbursements may result in subsequent attempts at recoupment. However, just because a payor claims it overpaid doesn't mean you have to immediately roll over and repay. It's critical to know your rights and best practices in overpayment scenarios.
  • Leaving a paper trail. Having well-documented processes and procedures for handling claims submissions, particularly appeals, is absolutely essential. Depending on the terms of a plan or contract, you usually must appeal a denial twice before being able to bring suit. If you fail to file a timely appeal, or if the appeal contains insufficient documentation, your later demand for payment in litigation is over before it can even begin. Having good recordkeeping, documentation and appeal processes in place will save you from countless reimbursement headaches down the road.

Ms. Lemoine is a partner at Wick Phillips in Dallas, Texas. She has extensive experience working with healthcare providers on compliance issues, billing disputes and employment agreements.

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