Managed Care - February 2009 - (Page 19) Make your plan bullet-proof Advice from defense lawyer Steven Ziegler, JD, and others: • Identify potential payment issues as soon as you start to see a pattern develop. Resolve them early, before a few loose stones turn into an avalanche of litigation. • If providers file suits, try for early mediation instead of waiting two years for scheduled mediation and before each side has spent significant amounts in legal fees. • More than 40 states have independent medical review boards, such as Maximus, to resolve health insurer disputes. Plans should take advantage of these unbiased experts. Lawyers are not involved and inexpensive resolution by health care experts, not a jury, is swift. • Many provider contracts valued at millions of dollars are written with little to no legal department review. Lawyers should either draft or review provider contracts. • To reduce provider disenfranchisement, hold forums and sift out what the real issues are. If you wait until cases are filed, the providers are really angry. • In marketing materials, don’t promise the best care or provision of all health care needs, or contend that you are a total health plan. This is ammunition for plaintiffs who can then turn around and contend that carriers hold themselves out as providers of care and so can be sued for negligence. • Given the complexity of the regulatory environment, have an active compliance plan. Don’t wait for things to happen and then respond to them. Determine what your obligations are and how you are complying with them. Make sure business and legal folks are on the same page at all times. The California Hospital Association, on behalf of all California hospitals that were left unpaid when policies were rescinded, negotiated an $11.8 million settlement with WellPoint in July 2008 in a class action over rescission. And the California Department of Managed Health Care fined the carrier $10 million for improper rescission that same month. “You had individual challenges before for rescission, but massive attack on a class basis really did not exist previously,” says defense lawyer Daly Temchine, JD. “California has been a trend leader in health care litigation over the past couple of decades. A lot of what starts in California sets the path for the rest of the country.” Ziegler, also a defense lawyer, predicts, “Despite what has happened in California, plans will continue to have rescission departments. They have to because there is a lot of potential fraud out there.” A third area of litigation is qui tam, which refers to claims brought by whistleblowers who allege fraud against the federal government by contractors. Medicaid or Medicare health plans fall into this category. The cases are growing and so is the number of states that have enacted their own qui tam provisions, according to George Breen, JD, a Washington, D.C., health plan defense lawyer. Many states are adopting these laws as sources of revenue because successful cases may enable a state to retain a percentage of any recovery in a Medicaid fraud case. One typical case filed by the federal government using the false claims act against MCOs is improper marketing to beneficiaries that violates the plan’s certification against discrimination in enrollment based on health care status. Among the most recently settled cases was a $225 million deal worked out last summer in United States ex rel. Tyson v. Amerigroup Illinois Inc. Amerigroup is a Medicaid HMO. Its former vice president, Cleveland Tyson, supplied internal memos and e-mail messages to federal prosecutors revealing that Amerigroup actively discouraged the enrollment of low-income pregnant women and others needing significant treatment. Each time Amerigroup Illinois submitted an enrollment form for a member constituted a false claim because the company avoided enrolling pregnant woman and others with expensive health conditions in violation of its promise not to discriminate. Defense costs way up Defense lawyers for plans admit they settle lawsuits sometimes even if they don’t perceive insur- FEBRUARY 2009 / MANAGED CARE 19
For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.