Yesterday, NJ legislators passed Bill S-3202, sponsored by Senator Lagana and Senator Gopal, in a unanimous vote. The bill requires hospitals to provide breast cancer patients with information concerning reconstructive surgery. It also prohibits carriers from preventing the referral of a patient to an out-of-network surgeon who provides “the full scope of breast cancer reconstructive services necessary and appropriate to the patients’ treatment needs.” The bill was released from committee by a vote of 39-0.
Yesterday, a letter signed by America’s Health Insurance Plans (AHIP) and others asks Congress to take action this year to “pass legislation that will protect patients from surprise medical bills and reign in out-of-control health care cost.” The letter outlines several steps to protect patients, most notably, requiring any legislation to encompass all health plans, including self-funded plans governed by ERISA and also recommends setting reimbursement rates based on “what insurers pay similar doctors in a given geographic area or a medicare percentage.” A proper reimbursement policy continues to be the lynch pin in gaining an agreed upon solution. The attached article by Steven Porter of HealthLeaders Media is very insightful and provides a link to the letter.
Today, Kaiser Health News published an insightful article on the Federal Surprise Bills being considered. Federal legislation is likely to significantly expand patient protection, in states that already have surprise bills enacted, by including self-funded plans under ERISA and will provide much needed protection in states where surprise bills have yet to be enacted. Details of a possible solution, in particular, how out-of-network physicians will be reimbursed remains to be seen.
On January 22, 2019 the NJ Bill S-3203, sponsored by Senator Joseph Lagana and Senator Vin Gopal, requiring hospitals to provide breast cancer patients with information concerning reconstructive surgery was released from committee and will head to the full Senate for further consideration. Additionally, the legislation will not limit a health care provider in making recommendations or referrals to a board-certified plastic surgeon regardless of network affiliation, benefiting both patients and physicians. Please read the full article by clicking on the link: NJ Office of Legislative Services.
The article below speaks to the rise of the PPO networks and the impact on the US healthcare system. While the article was published in 2016, the industry remains plagued with the same issues. The analogy of the healthcare players (hospitals, insurance, physicians, pharmacy, etc) to the OPEC cartels of yesteryear is very compelling and thought provoking.
As part of the agreement, EmblemHealth will provide full restitution to members who paid out-of-pocket for gender reassignment surgical procedures after denial of coverage by EmblemHealth. For the full article please click here.
Law360 (December 11, 2018, 10:09 PM EST) has published an article covering another case in which Cohen & Howard has successfully challenged the under-reimbursement of authorized medical services rendered by our client, an out-of-network provider. For the full article please click Law 360 Article on Linares Decision.
For the complete Opinion issued by Chief District Judge Linares of the United States District Court of New Jersey please click Comprehensive Spine Care v Oxford and UHC.
On November 20, 2018, The New Jersey Department of Banking and Insurance (“DOBI”) released Bulletin No. 18-14 (the “Bulletin”) relating to Implementation of P.L. 2018 C. 32 (N.J.S.A. 26:2SS-1 to -20) Out-of-Network Consumer Protection, Transparency, Cost Containment and Accountability Act (the “Surprise Bill Act”). As a reminder, the Surprise Bill Law relates to ER and involuntary out-of-network care for services rendered on or after August 30, 2018 under fully insured plans, MEWA, the State Health Benefits Program and The School Employees’ Health Benefit Program. The Bulletin is intended to provide implementation guidance regarding the Surprise Bill Law pending the adoption of rules. DOBI intends to propose such rules in the near future. Please see the Bulletin in its entirety at the link below:
The Bulletin includes references to the following attachments:
- Attachment A: Appeal and Arbitration Process Grid
- Attachment B: Application for Arbitration of Payment for Inadvertent, Emergency or Urgent Out-of-Network Health Care Services
- Attachment C: Disclosures to Covered Persons Regarding Out-of-Network Treatment
Out-Of-Network Health Care Provider Isn’t Seeking ERISA Benefits, Judge Says (Lexis Legal News)
TRENTON, N.J. — An out-of-network provider is not a beneficiary of an Employee Retirement Income Security Act plan (ERISA), and because the plan includes an anti-assignment provision, it cannot sue to recover benefits under the law, a federal judge in New Jersey held July 31 in remanding the action back to State court for pursuit of State law claims (Advanced Orthopedics and Sports Medicine Institute v. Blue Cross Blue Shield of New Jersey, et al., No. 17-11807, D. N.J.). Please click on link below for the full article.
Cohen & Howard represents out-of-network orthopedic surgeon on September 25, 2018 in suit filed against Aetna. Federal Court denied motion to dismiss case, finding that State law claims were not preempted by ERISA. Please click link below for media coverage of the case published by Law360.
On August 27, 2018, the Department of Banking and Insurance issued a “Synopsis of the Implementation of the Out-of-Network Consumer Protection, Transparency, Cost Containment and Accountability Act” (the “Synopsis”). The Synopsis is intended to provide guidance and clarity with regard to implementing the new regulations.
As a reminder, the law generally only applies to (i) fully-insured plans, State Health Benefit Plans and those self-funded plans that opt into the law, and (ii) services under those plans that relate to emergency care, urgent care (required care within 24 hours as being proposed by DOBI as part of the Synopsis) or inadvertent out-of-network services.
At Cohen & Howard, we continue to advise our clients on how to comply with the new proposed provisions. In particular, requirements related to disclosure, processing time frames and the new arbitration process are in the forefront. As always, we are committed to servicing the out-of-network provider community and can be reached at 732-747-5202 for any questions related to the bill or if you need any assistance with the handling of your appeals/claims.
To see the Synopsis in its entirety, please click here.
In order to facilitate proper claim reimbursements and to file health benefit claims on behalf of your patients, your Assignment of Benefits and Designated Authorized Representative Form(s) must be updated to include a Limited Special Power of Attorney based on the court decision below. We have prepared this document for our clients and can do the same for you – please contact us today should you need assistance.
Third Circuit Validates Anti-Assignment Clauses under ERISA Plans; Recognizes Power of Attorney as a Valid Means to Challenge Payment
On May 16, 2018, the United States Court of Appeals for the Third Circuit affirmed a lower court decision upholding the right of ERISA-based insurance contracts and benefit plans to prohibit assignment of rights by patients to providers through unambiguous anti-assignment clauses. In American Orthopedic & Sports Medicine v. Independence Blue Cross Blue Shield, et al., 2018 WL 2289879 (D.N.J. 2018), the Court concluded there was no basis to depart “from the general rule that courts will enforce the terms of an agreement that was freely negotiated between contracting parties”. The effect of this ruling is to limit the right of providers under ERISA plans to directly sue carriers for additional benefits under the plan or for claims of breach of fiduciary duty. As a result, the right of providers, as an assignee under an ERISA plan, to directly and legally challenge payments, has been eliminated for those plans that maintain unambiguous anti-assignment clauses. In light of this ruling, we expect to see an increase in plans adopting anti-assignment clauses.
However, the Court did leave open the right of providers under an ERISA plan to challenge payment through a ‘power of attorney’ granted by the patient to the provider. The Third Circuit rejected the argument of Independence that the anti-assignment clause applied equally to a power of attorney. Specifically, the Court stated “our holding today that the anti-assignment clause is enforceable means that Joshua, the plan beneficiary, did not transfer the interest in his claim, but it does not mean that Joshua cannot grant a valid power of attorney”. By leaving open the right of a provider to pursue claims as a ‘power of attorney’, the Court negated the impact of its ruling on the anti-assignment clauses for those practices that maintain the right paperwork as part of the patient intake file. The right to challenge payment through a well-drafted power of attorney and complaint was also recently confirmed by the United States District Court of New Jersey in The Center for Orthopedics and Sports Medicine V. Anthem Blue Cross Life and Health Insurance Company, 2018 WL 1440325 (D.N.J. March 22, 2018).
The conference room of the APA Hotel in Woodbridge was filled to capacity Monday, June 11, for the New Jersey Doctor-Patient Alliance Practice Enhancement Seminar focusing on what independent providers should do to prepare for the uncertainty coming with the new out-of-network law.
Gov. Phil Murphy signed A2039/S485 into law on June 1. Before the ink was dry on the bill, the NJDPA was already planning its seminar to help doctors and other medical providers navigate the uncertain future.
More than 300 doctors, billing specialists and other medical professionals heard presentations by leading experts in the field, including insights from state Sen. Joseph Lagana, a Democrat who has listened to the concerns raised by doctors about the out-of-network legislation.
Other speakers included Leslie Howard, Esq., the founding member of Cohen and Howard, and Joseph Ariyan, Esq., the founding member of Ariyan Law, who both deconstructed the law’s impact on medical practices.
Michael Maron, the CEO of Holy Name Hospital, gave his perspective as a hospital leader on fostering healthy relationships among doctors, hospitals and patients.
Eric Poe, the complex claims litigation officer for NJ Pure, spoke about medical malpractice, while Neelendu Bose, a healthcare compliance officer with AccordMS, explained ways to recoup money from charged off bills.
On Monday, June 11, Leslie Howard shared her insights on the NJ Surprise Bill at the NJ Doctor-Patient Alliance (NJDPA) Meeting to a packed audience of 250 healthcare providers and professionals. She provided a comprehensive roadmap of the bills impact highlighting the types of commercial plans and services that will be subject to the bill. But she didn’t stop there — she also provided an in-depth view into the documentation requirements that providers will need to adopt in order to comply with the latest regulations. At first blush, it appeared that the NJ Surprise Bill could be far reaching for OON providers. However, Leslie’s analysis has concluded that only 20-30% of NJ Patients will be covered under the bill and possibly even less as employers continue to shift toward the self-insured plan structure. Please check out her presentation below for all the details. In the next few months, we will be keeping the out-of-network provider community abreast of the changes, directives and required documentation as the State begins to fine tune this bill. As always, Cohen and Howard is committed to providing our clients with relevant, actionable advice and continues to be a leader in recovering out-of-network fees for providers.