Somervell County Hospital District To Engage Lawyer to Get Lab Fees Blue Cross Blue Shield DeniesSomervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


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Somervell County Hospital District To Engage Lawyer to Get Lab Fees Blue Cross Blue Shield Denies
 


2 December 2019 at 8:22:59 AM
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Background

Michael Honea, at a meeting a few years ago, pitched bringing in outside lab work to Glen Rose Medical Center  through a management company. In other words, were the labs being done for Somervell County residents? No, they could have come, for example, from Oklahoma,or north Texas, or anywhere.  Essentially, the way I read this is that if a person from wherever had their lab sent to Glen Rose Medical Center to be processed, GRMC could hike the cost of the work, with the management company getting a cut. The person getting the lab work done, if he or she paid attention, might wonder if they went to a doctor or hospital in say, McKinney, why the lab was processed in Glen Rose. However, when it came time for GRMC to get paid, Blue Cross Blue Shield wouldn't pay. So GRMC ended up with a lot of claims that weren't getting reiumbursed. 

Here's why Blue Cross Blue Shield might have said this was fraud; because rural hospitals are reimbursed at higher rates by insurance companies TO KEEP CRITICAL HEALTHCARE IN THOSE COMMUNITIES. BUT if GRMC was doing lab work for people who don't even live in THIS rural community in order to make more money than they otherwise would. Pass-through billing is the name of some fraud that has occurred in other places., see the link above. 

Because pretty much every single month, Michael Honea has been asked if he's been able to resolve the issue with BC/BS not paying, and it hasn't been happening for whatever reason, the Somervell County Hospital District went looking for an attorney to help them get the money. It'e an interesting discussion above that centers around a Prompt Pay Laws. Prompt Pay Laws essentially says that in certain conditions, a contrator who pays or doesn't want to pay or only pay part, has to follow particular procedures to be in compliance with the law. Bryan Blevins seems to say that even if BCBS thought that GRMC was committing fraud with the lab claims, because they didn't follow some specific procedures with the Prompt Pay law it doesn't matter, that if BCBS though GRMC was violating their contract through fraud, they should have either suspended or voided the contract. 

September 5, 2019- "Review, discuss and if necessary take action to approve contingency agreement  with attorney for Blue Cross/Blue Shield billing issues

Rough transcript

 

Sept 26, 2019. Review and discuss Blue Cross Blue Shield billing issues and possible Client Representation Agreement with Bryan Blevins of ProvostUmphrey Law Firm... Ciscuss and if necessary authorize Chairman Ron Hankins and CEO Ray Reynolds to work with Attorney Kevin Reed to negotiate a Client Representation Agreement with ProvostUmphrey Law Firm. Client Representation Agreement to be brought back to the Board for approval. 

Rough Transcript:
 
Reynolds: This is kind of a followup to a meeting we had with Kevin Reed regarding our issues with Blue Cross. Ron, Michael and I visited with Mr Blevins in Austin 2 or 3 weeks ago and thought it best and kind of at y'alls request that he come here and have a face to face meeting. Let's tell a little about him and his firm and also about his experience and expectations of where we are with Blue Cross, I'll just turn it over to you, Bryan
Blevins: I normally talk standing up so I'm much more comfortable that way. I am Bryan Blevins and I'm a partner with Provost and Umphrey law firm. I've been a partner since 1997. I've been with them since 1990 when I graduated from Baylor Law School. Our firm is a mixed contingency fee practice firm, that means we don't bill by the hour, we represent people on contingency fee, a percentage of the recovery, which also means that we arrange for the expenses of the case, we carry those whether it's through direct spending or finance spending and we only get paid if we make a successful recovery at the end of the case and that includes both our time and our expenses. With respect to my personal practice, we do, our firm has historically been a personal injury firm, we didn't do medical malpractice, so we're clear on that. But we did do a wide variety of personal injury, particularly out of chemical plants.. I did a lot of asbestos and silica litigation when I was first involved in our firm, but over the years we have branched out into a number of other areas of litigation. I do oil and gas, royalty owner litigation, I do (?) bpill litigation, and prompt pay. I'm happy to answer any other questions about me or our firm.. it's our 50th anniversary since our founder Walter Umphrey started the firm. We were one of the five firms that represented the state of Texas in tobacco litigation, so that's sort of the snapshot of who we are. 
Our introduction into prompt pay was sort of a happenstance. As many of you may be familiar, the legislature passed the current prompt pay laws in 2003. They originally passed 2001 but then Governor Perry vetoed it, legislature came back in 2003 and passed it again and they became law. There was a gentleman lawyer by the name of John O'Quinn who was very instrumental in promoting those laws and worked very closely with TMA and THA to get those laws passed .. another one of the big five tobacco attorneys. John really invested a lot of time, money and resources into building a clientelle of prompt pay cases, particularly representing doctor groups, predominantly against the payors. But he met a tragic end in an automobile accident in roughly 2009, 2008. We haven't had past relationships with his firm, reached out and basically took over his prompt pay docket. And the expert and the data management of that for his offices and we cleaned up basically all of his cases and then we went on once we had gained (?) to take on our own clients. We did that until about 2015, I was predominantly the person in charge of that, we represented almost exclusively doctor provider groups, very few hospitals and clinics. And that's why we started to make the decision to leave the prompt pay area because won't be a surprise to anyone in this group, doctor groups tend to have a disorganized back office practices and they have lots of claims from lots of little services that all get stuck on one bill and all subject to a variety of adjudication rules, many of which are not even appreciated. It is an incredibly data intensive, trying effort to try to represent a medium to large size provider group in prompt pay. And then, as we were sort of looking at that, the Memorial Hospital UHC and Blue Cross/Blue Shield cases ended our interest in prompt pay which may make you wonder why I'm standing here. Which was, if you're not familiar with the case, it's basically that this circuit ruled a question that had sort of been on everyone's mind and that was, whether or not these prompt pay laws apply to claims that arose out of self-funded plan, plans governed by erisa (?) as opposed to a fully insured plan claim. Blue Cross/Blue Shield was the actual insurer of that claim, versus an administrator of iresa  plans. That was an undetermined issue. I'm probably as familar with the legislative issue because I've made this argument many many times in arbitration and we were winning that argument and in fact the prompt pay law applied to those claims, self-funded claims., probably about 65% of the time. So when United Healthcare Memorial cases came out, the circuit said Nope, Bam. The prompt pay laws of Texas only apply to fully insured claims. Period. And that's a real problem because 80 to 90 % of most  of the claims we were seeing in doctor provider groups were self-funded and without the benefit of the prompt pay laws, they're right back where they were pre-2000.
And your case is an excellent example of that. ... Whatever Blue Cross/Blue Shields complaints are,whatever they think was being done wrong, whatever they think the legal defenses are, for what they've done, I don't care because that's not how the prompt pay laws are written. You have basically four choices. You have, assuming it's an electronic claim, you have 30 days to pay the claim. YOu have 30 days to pay a portion of the claim and explain in detail why you're not paying the rest of the claim. Or you have 30 days to tell the provider that you're not going to pay anything and exactly why in writing or the 4th one is, you can pay 100 % of the contract charge and then tell the provider, the hospital, that you're (?). 
Now, based on, and I'm much more famliar with the Knox group than I am with the facts of your case...is they contracted with me first and I've gotten more information on that but what I understand from that, that isn't what Blue Cross Blue Shield did. They didn't pay claims, they didn't tell you why they weren't paying claims, they sat on that, they probably initiated a pre-payment review, which is a neatly worded concept that you can't find anywhere; it's not even in your contract. There's no such thing as a pre-payment review in your contract and it's certainly not in the prompt pay laws. And the prompt pay laws have a wonderful provision .. that every one of the primary sections,13.01  and (?) have provisions that say You cannot enter into a contract that writes around or nulls or voids the provisions of the prompt pay law. It does not matter under your contract that it says you have to do this or you have to do that or you have to go to mediation first or you have to appeal .. doesn't matter. None of those things matter because the prompt pay laws say You have this long to pay the claim and if you don't, you have to do these 3 things and if you don't do those 3 things, you are the one who's at fault. And all those other contract provisions are about the voiding of that very limited set of options. 
It's a great law. It is .. In 2017, 2015 I was the president of the Texas Trial Lawyers Association which in a legislative session year, means I in effect was an unpaid lobbyist. I'm across the street at the Capitol on behalf of families of the State of Texas trying to prevent them from writing bad laws that do nothing but try to hurt other individuals. One of the laws came up, Blue Cross Blue Shield started to put on a big push to roll back the prompt pay laws. Prompt pay law penalties are the most aggressive of any prompt pay laws anywhere in the country. Every state in the Union has prompt pay laws of some kind; Texas's are by far the most robust. In the right case, they are crippling. 
Y'alls case is probably not going to be that, because one of the key elements between the bill charge and the contract rate. In provider groups, that's a huge deal. Billing and contract rates have almost no relationship whatever to each other. Y'alls contracts are a percentage. Nothing wrong with a 23% differential or a 35% differential in the two contracts I think I've seen.. there's a gap but that's where the penalty comes up. So basically the way the penalties work depending on whether it's late paid or not paid, is it's the amount owed, the contracted rate, Plus the penalty,tthat's the percentage of the amount between billed and contracted less what was paid times 18 percent. Interest, 18 %. So you get into dynamic damage model when you can get into workaround. But unfortunately it only applies to fully insured claims. 
So when we started down this road, I was actuallythrough legislative connections that I got the call because they had seen me testifying against rolling back those provisions. The first question I asked was Are your claims fully insured or are they self-funded? And what I've been told and certainly what I hope bears out is the the majority if not an overwhelming majority of the claims are fully insured. Again, I think that might be because the claims are coming in from other places, they're being solicited in, and there's some process that had been used to screen those claims, and that's why I think there may be a higher percentage of fully insured claims in your population that I might otherwise expect. but if you've got 50 percent fully insured claims, I'm more than happy to take that group on and see if we can't leverage that group for a complete resolution. In the non-fully insured, self-funding, you've got erisa, basically, you acctped payment,  erisa does not have the nullification language so you are bound by your contract, you have to have very specific assignement of benefits because you now stand in the shoes of the patient, if you don't have a federally assigned beneift clause, then you are not, for purposes of the law, the patient. That's who you have to be to enforce your rights against the plan and so those are the things that we would look at on your self-funded claims. But really the opportunity here is to take those fully insured claims and use those as the leverage tool to resolve the problem. 
... I don't know what your data looks like so I really have no idea what we have to work with here. The number one thing and this is particularly with Blue Cross/Blue Shield, you have ... I literaly would spend the first 6 plus months, 9 months battling Blue Cross/Blue Shield in front of the arbirtartor over who are the clamis,because Blue Cross/Blue Shield takes the position in every case that if you can't connect your claim to a BCBS DC NIN (?) number, then we don't know. "We can't tell if that's the right person". .. Now, that's beside the point but on their website, they tell doctors exactly how they can do that because you have the name of the patient, date of service, date of birth and (?). That's what they tell a doctor you have to have to identify the claims and it will still take 6-9 months just to get that out. 
So, first thing I keep my fingers crossed about here is that ya'll have better information and y'all know the NIN numbers for the claims because if I have DCN numbers we can get going on the cliams. Second thing is self-funded versus fully insured. I gotta know the answer to that. Now I have three other pages of stuff that I have to have. I have to know about your systems, about how you store information, about how you (?) requests for information,  whether or not you get deficiency notices ... those are all things that I'm happy to work with ya'll on but the two most important questions are, do you know DCN numbers of your cliams and do you know which are fully insured. If you can tell me that, then we can get out here. 
My recommendation would be, step one, go to mediation. It doesn't take that long. It's a 60 day period of time once we have our information ready. Under my contract it says a 25 % fee rate so it's a lower cost if I don't have to file the arbitration.l don't hold out real hope but it's there contractually, I don't think it hurts you and maybe we get lucky. BCBS fully recognizes that they got a problem and what I want to see in a mediator who knows about this industry, who knows about prompt pay laws and so when I go and say there are 4 things and they didn't either of those 4 things, I don't care what the excuses are, I don't care what you think they are, if you think there's fraud, great! Paragraph X page 7 says fraud, you can terminate or suspend the contract, did you do that? no, then those 4 things control. And I'm hoping someone who understands this from a mediator standpoint ... very compelling to the arbitrator to say Whoa, no no they provided for that... ON the one hand you gotta live with the contract  on the other there's only 4 things they can do. 
Hankins: If we get into mediation or arbitration and they start coming up with excuses or defense .. seems like you just ask them did you tell Glen Rose that was a problem, did you bring it up at all, becasue if they had a defense they would have hit us with it a long time ago.
Blevins: Yeah.. It just doesn't matter . Whatever their issues are, regardless of their validity, the prompt pay laws just don't give you but 4 choices. 
Under your contract, if they didn't want to do one of those 4 things, they should have suspended you or terminated your contract. That's legitimately what their options are.....Now even if they do that, they still have a problem because your termination contract says claims previously submitted are governed by contracts. They don't get out of it, they could have stopped you from keeping doing it. 
Hankins: They'e effectively stopped us by not paying.
Blevins: Which again is retaliatory. And you have an anti-retalition provision in your contract, multiple provisions under the prompt pay laws. I never really had a provider situation that I thought qualified as retaliatory but if they put you on payment lockout, if that payment lockout extends to non-labatory claims, if they have put you on 100 percent billing records requests 
Hankins: You've got three. 
Blevins: Those are nothing but retaliation for this event. To me, that's cut and dried. The most offensive would be that they put your non-laboratory services on payment lockout as well. I think that's almost black letter retaliation. 
Hankins: Michael can tell you that. 
Blevins. (More about retaliation). I've never had a case where I thought I could make that argument, but in this case. The fact that I don't think you're gone as far with TDI as Knox did. .. I hate TDI. They are some of my least favorite people. They are worthless as it gets. .. The idea that they took the position that this is a contract dispute and they don't involve themselves in contract disputes is ludicrous. the law says you cannot contract around the prompt pay law. ..... (history of TDI penalizes the insurance industry)
 
October 31 2019- Consider and take action, if any, on the retention of outside counsel on a contingency basis to collect certain insurance receivables. Retention would be pursuant to Texas Government Code 2254.1036 and approved by the Office of the Texas Attorney General. Attached to the Agenda is the required public notice under Texas Government Code Section 2254.1036. 
 
Im curious about why the Office of the Texas Attorney General would have to give approval for Somervell County Hospital District to engage an attorney. Here's the relevant part of the law
 

Section 2254.1036 - Political Subdivision: Contract Notice; Approval By Governing Body

(a) A political subdivision may enter into a contingent fee contract for legal services only if the political subdivision:(1) before or at the time of giving the written notice required by Section 551.041 for a meeting described by Subdivision (2), also provides written notice to the public stating:

(A) the reasons for pursuing the matter that is the subject of the legal services for which the attorney or law firm would be retained and the desired outcome of pursuing the matter;

(B) the competence, qualifications, and experience demonstrated by the attorney or law firm selected under Section 2254.1032;

(C) the nature of any relationship, including the beginning of the relationship, between the political subdivision or governing body and the attorney or law firm selected under Section 2254.1032;

(D) the reasons the legal services cannot be adequately performed by the attorneys and supporting personnel of the political subdivision;

(E) the reasons the legal services cannot be reasonably obtained from attorneys in private practice under a contract providing for the payment of hourly fees without contingency; and

(F) the reasons entering into a contingent fee contract for legal services is in the best interest of the residents of the political subdivision; and

(2) approves the contract in an open meeting called for the purpose of considering the matters listed in Subsection (a)(1).

(b) On approval of a contingent fee contract, the governing body of a political subdivision shall state in writing that the political subdivision finds that:

(1) there is a substantial need for the legal services;

(2) the legal services cannot be adequately performed by the attorneys and supporting personnel of the political subdivision; and

(3) the legal services cannot reasonably be obtained from attorneys in private practice under a contract providing only for the payment of hourly fees, without regard to the outcome of the matter, because of the nature of the matter for which the services will be obtained or because the political subdivision does not have funds to pay the estimated amounts required under a contract providing only for the payment of hourly fees.

Tex. Gov't. Code § 2254.1036

Added by Acts 2019, Texas Acts of the 86th Leg.- Regular Session, ch. 857,Sec. 4, eff. 9/1/2019.

Looks to me that the reason both for AG approval and for notice to the public is because it's a contingency case. 

Here is the proposed atty agreement, from the Somervell County Hospital District board packet.

Incidentally, Somervell County Hospital District, for obvious reasons, not doing those labs via mgt company now

As a point that apparently Somervell County didn't do due diligence in the first place whether doing these labs through a management company might be fraudulent, here's Ron Hankins from the Sept 24, 2019 Somervell County Hospital District board meeting 

.... I'm hopeful that maybe we find out that what we're doing is legal and what the insurance company is doing to us is not legal and get that settled so that they can't hopefully go there"

 


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