QUARTERLY NEWSLETTER - FALL EDITION 2012 - #5
TWITTER WARS
The Effects of Social Media On the Hospital Communication Landscape Emergency Services & Senate Bill 1285 By Charles J. Acquisto, esq. Social media is not only changing how mainstream news is delivered, it is revolutionizing how hospitals interact with the public and empowers patients by giving them a platform to voice their concerns. Tech savvy patients understand the power of social media such as Twitter and Yelp! and are utilizing these channels in new ways to be heard and get results at warp speeds.
Default Reimbursement Gone Awry Hospitals benefit from Facebook as a solid source of peer recommendations, but also risk bad PR if not monitored properly. “If you see your Facebook friend posting praise on a hospital’s business page, you will definitely think about going to that hospital next time you need a medical procedure,” McNeil said.
Where the pen was once the mighty sword, the Internet now wields the power that has corporate CEO’s, especially in healthcare, fearing the power of a tweet.
Patients may be the biggest beneficiaries of this expanding social media phenomenon. McNeil said that educating the public on diseases and answering common health questions through social media is not only smart marketing, but may even keep a community healthier via social media education.
USA Today reported about an Arizona State University student Arijit Guha, 31, who was battling stage-4 colon cancer when he learned his student health insurance benefits had been exhausted with his bills quickly rising. Guha took to his Twitter account to relay his financial plight, while also launching his Poop Strong website to try and raise money to pay his mounting bills.
Kansas State University assistant profession Linda Yarrow, a registered and licensed dietitian, said more people are seeking health information from social media sites such as Facebook in order to get support and advice in addition to their professional medical care. When used correctly, social media websites may help patients stay motivated and accountable, Yarrow said.
“Gotta preserve that $2 billion annual profit somehow,” Guha tweeted.
Out of the 74 percent of adults who use the Internet, Yarrow noted that 80 percent have looked for health information online. In addition, 34 percent of adult Internet users have read online blogs or used social media to learn more about a medical issue or find support.
Guha’s Twitter feed ultimately caught the eye of AETNA CEO Mark T. Bertolini, who exchanged in a health debate with Guha on July 26 and 27. Guha’s Twitter power achieved an unexpected payoff of $118,000 when AETNA agreed to pick up all of his outstanding medical bills. According to Healthcaresource.com content manager Rebecca McNeil, hospital marketing departments and human resources departments are embracing social media like never before, especially Facebook and Twitter. “It’s a customer-service-driven industry,” McNeil said on a healthsource.com posting, “so these [social media] platforms are a great way to engage current and prospective patients.”
As social media continues to rapidly evolve, the informed providers and patients are spending worthwhile energy and resources into utilizing these communication giants to benefit the community and health care as a whole. Be sure to check out SAC’s Social Media Channels.
By Danielle M. Cantrell, Esq. A recently proposed law, Senate Bill (SB) 1285, establishes a default reimbursement scheme for emergency services provided by hospitals with significant out-of-network utilization rates. We believe that this bill will have a negative impact on hospitals, and would like to summarize what this legislation might mean for our provider clients. SB 1285 would amend California Health & Safety Code § 1371.4, requiring a hospital with an out-of-network emergency utilization rate, as defined, of 50% or more, to adjust its total billed charges for emergency services and care provided to a patient prior to stabilization, to an amount no greater than 150% of the amount the hospital could expect to receive from Medicare...” If the bill is enacted, it will diminish providers’ bottom lines by effectively eliminating their right to bill an out-of-network insured patient’s health plan for total billed charges for emergency services. Your friends at SAC and CHA are concerned that the bill would reduce access to emergency services as well as the incentive to contract. Additionally, the legislation is superfluous because most providers already have procedures in place to resolve rate disputes. After twenty-three years of representing providers, SAC still views the courts and alternative dispute resolution services as the most appropriate mechanisms to resolve disputes, not complicated legislation such as SB 1285. All our provider clients are encouraged to contact Sen. Hernandez through his website:http://sd24.senate.ca.gov/contact/ email, in addition to the state senate representatives in their local area to express their opposition to this potentially devastating legislation.
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MEDICARE??
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THIRD PARTY PAYORS??
Hospital Lien Filing vs. Submitting to Medicare? Billing Options, State Laws and Other Dilemmas
By Charles Acquisto, Esq. Recent California court decisions have severely hampered the ability of hospitals to file Third-Party Liability under the California Hospital Lien Act (Health & Safety code sections 3045.1-3045.6). Many providers are unsure whether a hospital may still elect to file a lien instead of billing Medicare.
just a few) to file liens seeking repayment from the other party’s insurance. This often means the total amount of liens far exceeds the available funds. In these circumstances, a provider is likely to have to accept a pro rata distribution (hospital’s lien percentage x total dollars available to lien holders).
The short answer is…YES.
WEIGHING TOTAL BILLED CHARGES VS. THIRD-PARTY POLICY LIMITS
“In a liability situation where the liability insurance is in dispute, a hospital may bill Medicare conditionally,” Ellen Griffith, a spokeswoman for the Centers for Medicare & Medicaid Services, told the Austin American Statesman. “Medicare will recover its conditional payments from the ultimate settlement, if any. This enables the hospital to be paid more promptly than if it had to wait until the liability dispute is resolved.” In fact, providers are required to pursue/ bill no-fault and liability insurance for the first 120 days after the date of service (42 U.S.C. Section 1395y(b)(2)(A)). For the first 120 days after discharge, the facility cannot bill Medicare if there is potential liability insurance available, unless it has evidence that the liability insurer will not pay within the 120 day period. After that, a provider may bill Medicare or elect to pursue a reimbursement via a viable lien. However, there are many factors a hospital must take into consideration in deciding which financial path to take.
A HOSPITAL LIEN RESOLUTION CAN TAKE YEARS TO RESOLVE Providers often choose to put a lien on the case because they do not have the required information needed to get a payment from Medicare. This missing information may be the proof that the wrong doer’s insurance’s have been exhausted. In order for Medicare to make conditional payments, it requires this necessary information. So why not just bill Medicare and then put a lien on the file for the balance? This practice is not allowed since once a provider bills Medicare they cannot bill the patient other than for the patient’s financial liability. It is equally important to remember that the hospital is often not the only lien holder after an accident. In accident cases, it is common for the injured person’s physician, ambulance service and chiropractor (to name
Perhaps the most critical factor in determining whether to file a hospital lien or pursue only Medicare for payment is the liability policy limits of the at-fault party. If the policy limits are enough to cover the bill in its entirety, then the provider has the incentive to file a hospital lien. For example, auto accidents may involve motorists with very limited benefit policies with the common policy cap being $15,000.
“In a liability situation where the liability insurance is in dispute, a hospital may bill Medicare conditionally” In California, the patient’s attorney’s fees and costs often have priority over the hospital lien. California’s hospital lien statute also limits the amount of recovery by lien holders to 50 percent of the net settlement. If you choose to bill Medicare after the 120-day period you must withdraw claims against the liability insurer or liens placed on the beneficiary’s settlement. The Medicare reimbursement must be accepted as payment in full and you may charge the beneficiary only for applicable deductible, co-insurance, and non-covered services. It is wise for the hospital business office to fully evaluate the claim as to the applicable DRG vs the total charges and potential recovery. A hospital must never forget Medicare’s filing deadlines. Unless recovery of the lien is certain after discussions with the patient’s attorney and or the claims adjustor, SAC recommends that the claim be filed with Medicare.
Your Questions Answered By Our SAC Team of Experts Q: Will we get a TAR approved by Medi-Cal if, towards the end of the stay, the patient is no longer acute but cannot yet be discharged e.g. because the SNF is not yet available. A: Yes, for administrative days - make sure
your case management notes regarding placement efforts are incorporated in medical records presented to the Medi-Cal nurse. The required documentation is generally described in the Medi-Cal Manual of Medical Necessity at http://www.dhcs. ca.gov/formsandpubs/publications/Documents/Medi-Cal_PDFs/Manual_of_Criteria.pdf. For detailed instructions you should call your local Medi-Cal field office.
Q: Our in-patient Medi-Cal claim got denied as duplicate of a previously made payment with the same patient ID number for overlapping dates of service, even though our facility did not receive a payment. A: It might be that an SNF (skilled nursing facility) beat the inpatient hospital to the punch and incorrectly billed and got paid for a bed hold. If only a portion of your date of service is overlapping, you may split out the non-overlapping day or days so that at least this portion gets promptly processed for payment. The portion which continues to overlap with an incorrectly billed bed hold claim must be timely appealed and submitted to Medi-Cal Correspondence Specialist Unit. One thing to keep in mind is that the letter to a CSU is not equivalent to an appeal and should be done in addition to a formal appeal (on form 90-1).
Q: What are typical reasons for Medi-Cal TAR denials? A: The most common TAR denial reason
is that that the Medi-Cal nurse determines that the services the patient was receiving were no longer acute and could have been safely performed at a lower level of care facility. Another popular reason is the delay in providing a particular service – say, a surgery is determined necessary on Friday and not performed until Monday. The day of the surgery will be approved but the Saturday & Sunday will not.
Q: “Is it just us” or are ACS’ system problems affecting other providers? A: We are hearing from provider commu-
nity that the takeover by ACS as the Department of Health Care Services’ Fiscal Intermediary is causing a lot of turmoil – incorrect denials, claims being suspended and dropping off the system, Medicare or Share of Cost amounts not being deducted or being deducted incorrectly, CIFs getting lost... Just keep in mind that denied claims must be timely appealed (within 90 after the denial). Following the last appeal denial, providers have one year to file legal action against DHCS over unpaid bills (per Cal. Welf. & Inst. Code §14104.5.)
JOIN US - REGISTER NOW! The Vincent Acquisto Memorial Golf Tournament October 12, 2012
Wente Vineyards - Livermore, CA
BARRY SULLIVAN This quarter’s Spotlight is attorney Barry Sullivan. The head of SAC’s Litigation Department, Barry has practiced at SAC for over 7½ years.
Spotlight Q&A What are your duties as the Litigation Department’s leader? My job is to make sure that we win every one of our litigated cases. We have a dedicated team of attorneys handling somewhere near a couple hundred active cases in total. About 60% of them are arbitrations, 30% are cases in civil courts, and 10% are special situation cases. I’m also responsible for developing legal arguments when the payor community comes up with new ways to not pay hospital bills.
Are you detecting any new trends in that regard? One trend I’m seeing is a union trying to escape having to pay under a network agreement. They seem only too happy to verify benefits when one of their members needs treatment, and only too happy to pay the discounted network rates when it suits them – such as when the bill is small. When the bill is large those same unions suddenly claim they are not bound by the payment provisions in a network provider agreement because they physically did not sign it. Naturally, though, a union would not have signed the network provider agreement because that document represent only half of the overall arrangement; namely, the relationship between a hospital and a network such as Blue Cross or Health Net or United. A union or other self-funded plan most certainly is a party to the other half of the overall contractual arrangement; namely, the “access” contract between the network (Blue Cross, Health Net, United, etc.) and them which allows them to send their members to hospitals that belong to the network and gives them “access” to discounted rates. It’s a real problem right now.
Tell our readers about your legal background. I graduated from the law school at U.C. Berkeley in 1988. I spent my last year before graduation as a Visiting Scholar at Harvard Law School. From there I worked at three AmLaw 100 law firms until I started at SAC in early 2005. Before joining SAC I had spent 11 years working at Sheppard, Mullin, Richter & Hampton – a large “old line” law firm where I specialized in general business litigation.
What’s the difference between working at Sheppard, Mullin Richter & Hampton and SAC? As a general business litigator you never know what a new case will be about.
I represented everything from a hair-dryer asbestos case for Gillette, State Compensation Insurance Fund in a workers’ compensation bad faith insurance case to an industrial testing laboratory regarding damage to a satellite’s solar panels in a testing environment. That sort of work is ideal for building up skills in general business litigation. There was little overlap between the fact and legal issues involved. Here at SAC I’ve had the distinct advantage of being able to focus in one area of law: healthcare reimbursement issues. That focus has allowed me to gain a far deeper understanding of the intricacies of this important legal battlefield. SAC’s clients have benefited from this understanding because our adversaries, particularly outside law firms, practice in this area only part time. I find that even in-house counsel of our adversaries are not as well prepared as our attorneys because not all of their cases involve healthcare reimbursement. Sure, they might be going up against us in an arbitration regarding healthcare reimbursement one day, but the next day they very well might be embroiled in an wrongful termination matter.
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of a member’s benefits, not where, as we do here at SAC, a hospital sues based upon a network agreement. The Ninth Circuit agrees with my analysis. One of those Ninth Circuit decisions has been cited by courts as far away as Pennsylvania. In fact, that particular case has been cited in some legal briefs filed with the U.S. Supreme Court.
How about life outside of work? Of course, family comes first. I’m extremely proud that two of my kids are in college right now and my third is now a junior in high school. I am also proud to say I was called up to active duty by the U.S. Navy in 1990 to serve as an intelligence officer during the Persian Gulf War. My time in the Middle East back then was quite a break from my normal routine as a lawyer.
SAC SAYS FAREWELL
What do you enjoy most about your role at SAC? The biggest kick I get is helping new attorneys become litigators. I conduct weekly training meetings at lunch on Wednesdays where the topics range from deposition training, account analysis, discussion of new caselaw and the like. I also enjoy reviewing important legal briefs before they go out the door. So much of the basis for success in a litigated case depends on the quality of the written product. I’m not saying the in-person presentation isn’t important as well, but so much depends on convincing a judge to adopt your way of viewing a case and that depends on making your words count beforehand. A good legal brief will cause a judge to experience live testimony from your point of view. It’s an art. Teaching that art to young attorneys is very gratifying.
What are you most proud of accomplishing here at SAC from a legal perspective? I’m happy to say I’m 3 for 3 in personally arguing cases before the Ninth Circuit on ERISA pre-emption. Self-funded ERISA plans try to escape paying hospital bills by saying, “you can’t sue us for breach of contract, ERISA completely preempts state contract law, and allows us to disallow payment to you under our member agreements with our members in our unfettered discretion.” I’ve won on that issue several times now by arguing, essentially, that ERISA defenses work only when a hospital sues based as an assignee
SAC helps celebrate Stan Greengard’s retirement from patient accounting after many years of partnered success. Created in memory of Vince Acquisto
The Bili Project Foundation is dedicated to advance research to better detect and treat the complex family of cancers affecting the Hepatobiliary system, including cholangiocarcinoma, gallbladder cancer, and hepatocellular carcinoma (HCC). To find out more about the foundation, email:
info@thebiliproject.org
UPCOMING EVENTS
QUESTIONABLE TACTICS
Don’t Settle Your Rights Away
HFMA Southern California Fall Conference Hyatt Grand Champions Resort-Indian Wells, CA September 9-11, 2012
By Richard Lovich, esq.
CAHAM 44th Annual Educational Conference Encore at the Wynn Resort - Las Vegas, NV September 16-19, 2012 Register at www.caham.org
BEWARE: Bold Steps Insurers Are Taking In Settlement Agreements Hospitals should always beware of attempts by payors to limit their ability to obtain contractually mandated reimbursement. Here is an example of an attempt by a large commercial payor to expand its contractual rights by trying to slip the below language into a settlement agreement involving an individual claim. Hospital agrees that from this date forward, it will determine whether pre-certification is required … and, if so, will obtain pre-certification prior to providing the services. Hospital acknowledges it is aware of Payor’s procedures regarding pre-certification and is aware that all appeals for procedures requiring pre-certification, but where no pre-
QUESTIONS / COMMENTS We would love to hear from you! If you have questions, comments or feedback please email us at SACReview@sacfirm.com.
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certification was obtained, will be upheld and denied. This language went well beyond what had been agreed to in the Hospital Services Agreement. Had this language been allowed to remain, it could weaken attempts to recover money owed in all future claim disputes. Please keep in mind that your relationship with the payor is governed by your contract. The contract represents the agreed upon scope of recoverability and basis for denials. If you are asked in any subsequent agreements to agree to anything that would impact your contractual rights, view them with caution.
HFMA Northern California Fall Conference Hyatt Regency - Santa Clara, CA September 23-25, 2012 Vince Acquisto Memorial Golf Tournament and Silent Auction to benefit The Bili Project Foundation Wente Vineyards - Livermore, CA October 12, 2012 Registration and sponsorship opportunities can be found at:
www.hfma-nca.org/HFMAEvents
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