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Medical Society Class Action Settlements Compliance Dispute Process

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Title: Medical Society Class Action Settlements Compliance Dispute Process


1
Medical Society Class Action Settlements Complianc
e Dispute Process
  • Cameron C. Staples
  • Neubert, Pepe Monteith, P.C.
  • 195 Church Street, 13th Floor
  • New Haven, CT 06510
  • (203) 821-2000
  • ccs_at_npmlaw.com

Deborah J. Winegard c/o Doffermyre Shields
Canfield Knowles Devine 1355 Peachtree St.
Suite 1600 Atlanta, GA 30309 (404)
881-8900 dwinegard_at_gmail.com
2
Medical Society Class Action Lawsuits
  • Multi-District/Civil RICO Litigation 5 Medical
    Society Lawsuits Consolidated in U.S. District
    Court (Southern District of Florida, Miami
    Division)
  • State Court Class Action Lawsuits 13 Medical
    Societies Represented by Milberg Weiss Bershad
    Schulman LLP (State Court)
  • Lawsuits Transferred to Federal Court and
    Consolidated Settlement Negotiations Include
    all Plaintiffs

3
Settlement Agreements
  • Aetna
  • Final Approval 5/03/2004
  • Effective Date 5/21/2003
  • CIGNA
  • Final Approval 4/22/2004
  • Effective Date 4/22/2004
  • HealthNet
  • Preliminary Approval 5/02/2005
  • Final Order Date 9/26/2005
  • Effective Date 7/01/2006
  • Prudential
  • Preliminary Approval 5/05/2005
  • Final Order Date 9/26/2005
  • WellPoint/Anthem
  • Preliminary Approval 7/11/2005
  • Final Order Date 1/03/2006
  • Humana
  • Final Approval 3/06

4
Organization Chart
5
Prospective Relief
6
Retrospective Relief
  • Dollars to Physicians Varied by Settlement
  • Physicians Foundation for Health Systems
    Excellence, Inc. (Aetna Settlement)
  • Physicians Foundation for Health Systems
    Innovations, Inc. (CIGNA Settlement with
    Additional Funding from Wellpoint Settlement)
  • Grants Given in Areas of Information Technology,
    Physician Education and Quality Care/Patient
    Safety

7
Compliance Entity Created by Prudential Settlement
  • Name
  • Physicians Advocacy Institute, Inc. a 501(c)(6)
    Not-For-Profit Corporation
  • Purpose
  • To address issues related to abuse of managed
    care, and in particular to assure compliance with
    all the settlements and to identify and address
    future health plan practices that burden the
    ability of physicians to be paid fairly for their
    services

8
Physician Advisory Committee (PAC)
  • Reviews National Policy Issues
  • Names of PAC Members and Meeting Dates Posted
  • Reviews Redundant Claims/Payment/ Medical
    Necessity Disputes

9
Impact of Aetna Physicians Advisory Committee
  • Policy Change to Pay for Two EM Services
    Appended with the -25 Modifier for the Same
    Patient on the Same Day
  • Policy Change to Pay for EM Code Appended with
    the -57 Modifier for Procedures with 90 Day
    Global Issues
  • Considering Pay-for-Performance Program
  • Considering Multiple Procedure Logic

10
Independent Review of Billing Disputes
  • Reviews Coding and Payment Disputes
  • 500 in Dispute (Can be Aggregated)
  • Must First Exhaust Internal Appeals Process
  • Filing Timeframes
  • Filing Fee
  • WellPoint, Aetna, Cigna 50 Filing Fee5 of
    Amount of Dispute over 1,000
  • HealthNet 25 Filing Fee5 of Amount of Dispute
    over 1,000.
  • HealthNet, WellPoint Fee Returned if Physician
    Prevails.
  • Decision is Binding
  • Results Published and Referred to PAC

11
Independent Review of Medical Necessity Determinat
ions
  • Reviews Medical Necessity Determinations Based
    on Clinical Guidelines
  • Must First Exhaust Internal Appeals Processes
  • Filing Fee
  • Aetna, CIGNA, WellPoint 50 Filing Fee
  • HealthNet No Fee
  • Decision is Binding
  • Results Referred to PAC

12
Compliance Dispute Process
  • Physician Completes Form
  • Signatory Medical Society May Assist
  • File with Compliance Dispute Facilitator (CDF)
  • CDF reviews and evaluates dispute
  • CDF may reject dispute as improper or pursue
    resolution of dispute with Company or Compliance
    Dispute Review Officer (CDRO)
  • Compliance Dispute Review Officer may conduct
    mediation or arbitration proceedings to resolve
    dispute
  • CDRO may order relief, including class-wide
    relief if Companys violation is systemic
  • Dispute may be appealed to Federal Court if
    Abuse of Discretion

13
Step-by-Step Compliance Dispute Process
  • Any Physician (Who Has Not Opted Out) May File
    Dispute with Compliance Dispute Facilitator
    Within
  • 30 Calendar Days (Aetna/CIGNA)
  • 90 Calendar Days (HealthNet/WellPoint)
  • Signatory Medical Societies May Assist. Under
    HealthNet and WellPoint Settlements, a Signatory
    Medical Society May File on Behalf of its Class
    Members.
  • Complete Form with Physician Signature
  • Specific Conduct
  • How Settlement Agreement Has Been Breached
  • Supporting Documentation

14
Step-by-Step Compliance Dispute Process
(continued)
  • Facilitator Evaluates Dispute to Determine if
    Complaint Satisfies Settlement Requirements
  • Facilitator May Contact Physician for Additional
    Information or Documentation
  • Facilitator Represents Physician (Without Charge)
  • Dispute May Be Referred to Compliance Dispute
    Review Officer for Mediation and/or Arbitration

15
Step-by-Step Compliance Dispute Process
(continued)
  • Compliance Dispute Review Officer may conduct
    mediation and/or hearings to resolve dispute
  • CDRO may order relief, including class-wide
    relief if Companys violation is systemic
  • Dispute may be appealed to Federal Court for
    Abuse of Discretion and/or if CDRO Orders More
    or Less Relief than Required by Settlement

16
Legal/Procedural Issues In Compliance Process
  • What Constitutes Systemic Relief?
  • Aetna Motion for Summary Judgment Only
    Applicable When Most of the Settlement Provisions
    Violated
  • Motion Denied
  • Is Discovery Permitted?
  • What Hearing Procedures Apply (Live Witness
    Testimony?/Affidavits?)
  • Who Pays for Expert?

17
New Agreed Upon Aetna Procedure
  • Effort to Streamline and Expedite Process
  • Hybrid Process
  • Each Side to Present Case to CDRO with Experts if
    Appropriate at Mediation Session With Opportunity
    for Rebuttal Before at Commencement of Mediation
  • Individual Caucuses to be Kept to a Minimum

18
Examples of Compliance Disputes (Aetna)
  • Aetna Contract Out of Compliance with Settlement
    Agreement in Key Areas
  • Gag Clauses
  • All Products Clause
  • Mandatory Electronic Claims Submission
  • Failure to List Key Settlement Provisions
  • Overpayment Recover in Excess of 24 Months (Cases
    fact specific Aetna may do so for fraud)

19
Examples of Compliance Disputes (Aetna) (contd)
  • Non-payment of Minor Procedure Codes Billed with
    EM Code Appended with -25 Modifier
  • Denial of Add-on Codes
  • Global Periods Longer than CMS

20
Aetna Contract Compliance Dispute Resolution
  • All Aetna Participating Physicians in U.S. to
    Receive New Contract Addendum Explaining Rights
    under the Settlement Agreement
  • Specific Provisions Product Participation, Gag
    Clauses, List of Obligations, Termination
    Clauses, Others
  • Agreement Extended One Year Until June 2, 2008
    (Billing Dispute Process not Extended)
  • Cover Letter by Aetna Medical Director

21
Aetna Add-On Code Dispute Resolution
  • Add on Codes CAD Mammography and Myocardial
    Profusion
  • Aetna Now Paying Codes
  • Physicians Had Right to Resubmit Claims and to
    File Never Filed Claims
  • Claims had to be submitted by July 14, 2006
  • Many Physicians Missed Deadline

22
Aetna Modifier -25 Dispute Resolution
  • Aetna to Fix Claims Editing System
  • Aetna to Reprocess Petitioners Claims Back to
    Date of Settlement
  • Aetna to Reprocess Other Class Members Claims
    Back to July 1, 2004
  • Changes in Payment Policies Worth 1.7 Million
    Annually
  • Task Force to Recommend Changes to Website

23
Aetna Dispute Resolution EKGs
  • Arose in Broader Modifier -25 Dispute
  • Treated Separately Because Medicare and Some
    Other Payors Dont Require Modifier
  • Aetna Went Beyond Settlement and Removed the Edit
    Entirely for CPT 93010 When Billed With EM Codes
    99281 - 99285
  • Physicians May Resubmit Claims for Dates of
    Service from 2/12/2006 through 8/11/06
  • Deadline to Submit 11/11/06
  • Information and forms at www.aetna.com and SMS
    websites

24
Aetna Dispute Resolution All Products
  • Aetna Terminated a Physician from All its
    Products When She Ceased Participation in its
    Capitated Product in Violation of Sec. 7.13(b).
  • Resolution Aetna Reinstated the Physician in
    the Appropriate Products and Reprocessed Claims.

25
Aetna Dispute Resolution Global Periods
  • Aetna Included EM Visit in Which Decision for
    Surgery Made in Global Period for Major Surgeries
    in Effect Extending Global Period Beyond CMS in
    Violation of Sec. 7.20(b)(vii).
  • No Posting as Required by Sec. 7.8(a)
  • Resolution Aetna has Changed Policy to Match
    CMS
  • Physicians May Resubmit Claims back to January 1,
    2005
  • Details to Follow

26
Pending Aetna Dispute - EOB Information
  • Aetnas Failure to Revise EOBs to State that
    Non-PAR Physicians May Bill Patients in Violation
    of Sec. 7.21(a) and When it Does EOBs Often
    Provide Incorrect Patient Due Amount
  • Aetnas Response Only Required to do so for
    Traditional Products
  • Aetnas Response If Physician or Patient
    Complains, Aetna will Hold Patient Harmless
  • Likely to End Up in Mediation

27
Pending Aetna Dispute Multiple Procedure Logic
  • Aetnas Failure to Clearly Disclose on its
    Website Payment Rule Differing from CMS in
    Violation of Sec. 7.8(c)
  • Aetna Determines Which Procedure to Pay at 100
    Using Non-Facility RVUs, Which Often Results in
    Lower Payments to Physicians
  • Issue on PAB Agenda

28
Pending Aetna Dispute Vaccines
  • Two Separate Disputes
  • One Regards Aetnas Setting Fee Schedule Based on
    Bulk Purchase Price Rather Than Solo Dosage
    Looking for Solutions to Dilemma
  • One Alleges NJ Fee Schedule Does Not Cover Costs
    as Required by Sec. 7.14(b)

29
Pending Aetna Dispute Add-On Code 61795
  • Aetna Failure to Pay Add-on Code 61795 in
    Violation of Sec. 7.20(b)(ii)
  • Awaiting Response from Aetna

30
Aetna Pending Dispute - Indented Codes
  • Dispute Alleges Aetna Not Paying Indented Codes
    as Required by Sec. 7.20(b)(v).
  • Dispute in Investigational Phase

31
Possible Aetna Dispute Notice of Changes to Fee
Schedule
  • Aetna has Notified Physicians by Post Card in
    Some Markets About Changes to its Fee Schedules
    with Less Than 90 Days Notice Required by Sec.
    7.6.

32
CIGNA Pending Dispute Blended Rates
  • CIGNA Blends its Rates for EM Codes in CT, NJ
    and NY, in Effect Downcoding in Violation of Sec.
    7.19.
  • If Unable to Resolve Informally, Will Go to
    Mediation

33
Pending CIGNA Dispute Add-On Codes
  • Will Be Claims-Made Process Similar to Aetnas
  • Information to Follow

34
Possible CIGNA Disputes
  • Modifier -25
  • Multiple Procedure Logic

35
Anthem/Wellpoint Disputes
  • Failure to modify standard contracts to be
    consistent with settlement terms
  • Failure to recognize and pay Modifier 25 claims
  • Downcoding of claims through the use of blended
    rate policy

36
HealthNet Disputes
  • Failure to modify standard contracts to be
    consistent with settlement terms
  • Failure to recognize and pay Modifier 25 claims

37
Future Implications of Settlements
  • Physician Contracts
  • Need for Enhanced Transparency/State Regulations
  • PAC Input into Health Plan Decision Making
    Process
  • Enhanced Physician Awareness

38
Emerging Issues
  • Impact of Summary Judgment Ruling on Dismissed
    Defendants Will Competitive Forces Come to
    Bear?
  • Entry of Private Health Plans into Public Sector
    Plans
  • Physician Profiling/Pay-for-Performance
  • Rental Networks
  • Emergence of New Products

39
How You Can Help
  • Settlements Meaningless Without Enforcement
  • Contact Facilitator or Signatory Medical Society
    if you Believe Any Settlement has been Breached

40
  • Cameron C. Staples, Compliance Dispute
    Facilitator
  • HealthNet and Anthem/Wellpoint Settlements
  • Neubert, Pepe Monteith, P.C.
  • 195 Church Street, 13th Floor
  • New Haven, CT 06510
  • 203-821-2000
  • ccs_at_npmlaw.com
  • Carol Scheele, Compliance Dispute Facilitator
  • Humana Settlement
  • Associate General Counsel
  • North Carolina Medical Society
  • 222 North Pearson Street
  • Raleigh, NC 27601
  • 919-833-3836
  • cscheele_at_ncsms.org
  • Deborah J. Winegard, Compliance Dispute
    Facilitator

41
  • Cam I need the facilitators information for this
    slide. ?
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