Presented by:

Dennis S. Scott, JD, CHC, CHPC, CCEP

Assistant Director of Business Development

Privacy & Compliance Officer

PV Kent & Associates, P.C.

September 20, 2018

Presented at:

AAHAM, Twin States Chapter

2018 Annual Conference

Lake Morey Resort

One Clubhouse Road

Fairlee, VT 05045

King Arthur – Director of

PFS or Rev Cycle

Patsy – Your Claims Appeals

Team

Castle – Insurance

Company

Guards – Insurance

Representatives

Coconuts / Imaginary

Horse – Ineffective Appeal

Letter Efforts

Flag / Shield / Backpack /

Chain mail Armor – More

Effective Appeal Letter

Efforts

THE QUEST BEGINS (A Weak Metaphor)

Prevent

Appeal

Investigate

Demand* Getting Paid!

* Why is “Appeal” before “Investigate”? Shouldn’t it be the other way around?

Whether you will be able to write an effective appeal letter is, in many respects, determined long

before you sit down to actually write it. If you do not have good people, systems, policies, and

procedures in place you start at a major disadvantage.

Professional / Experienced /

Skilled Team

Timeliness / Know Your Ks

Multi-disciplinary Expertise—coding, claims, legal, compliance, front-end, etc.

Front End / Back End Continuity

AOB

Claims Tracking Program (baseline denial rate)

Tickler System

Ability to Measure

Communication

Key Contacts Database

Access to and Understanding of Contracts

Payer Specific Check Lists

Prevention Policies and Protocols (e.g., Non-Emergent Treatment)

Invite Payers to The Table / Welcome and Accept Training

Print Out Insurance Verification Information

Isolate and Address Recurring Denial Patterns

Insurance claims and appeals are not like

fine wine. They do not get better with age!!!!!

You want to get paid now, not later!

Don’t be in denial about your denials.

If we are being honest:

If you have to appeal you are by definition

losing money on the claim (time, resources,

diversion of staff, outsourcing, etc.).

LET’S BE HONEST – Avoid the Denial in the first place.

Find and address the root cause. Much cheaper.

Should have written policies and procedures

Easily accessible to all

Training / continuing education

Entity-wide buy-in (known and agreed to)

What gets you excited? – Minimum $$ you want your folks to pursue and to what lengths you want and expect them to go (you will see here I have one speed –aggressive)

A/R sort by Insurer and $$ amount

Look at top 2-3 insurers on your denials and find out why they are there? Fix it. Move on. Repeat-endlessly.

Unfortunately, problems that caused denied claims and appeals can be the result of any stage in

the revenue cycle from access to insurer denial.

Comply with timelines (Claims and Appeals)

(File under – Ph.D. in duh!)

More importantly, don’t fall for the timeliness shuffle! If the predicate falls – so does everything else. Very common BOGUS denial reason.

Perhaps the most common denial – yet, often you should look a little more closely (also most common basis for reversal once detail established)

Timeliness is, in my experience, often in the eye of the beholder (e.g., logic and reason, good faith, day counting rules, K, dog ate it, holidays, weekends, affidavits, etc.)

N.B. - Just because insurance co. didn’t get around to entering it in their system until day 91, that does not make my claim (or appeal) late!

Don’t give even the one hit wonders a pass!

-- You will likely have one or two very large dollar claims (relatively speaking) per year from an insurer with whom you have limited dealings (e.g., WTA)

-- Don’t write it off because “we only see this occasionally.” Find out what went wrong, fix it, appeal, and pursue further, if necessary.

-- Sometimes insurer is counting on this stance (push back)

-- Call the bluff (as between the two – you have the better equity position)

Divide your A/R up in a meaningful way

Prioritize and make it known

– Age? High dollar? Certain payer? Other?

Have a specialized high dollar hit team!

Reward good work

Write-off – See earlier fine wine comment!

Outsourcing can be used as a second opinion. Very few (if any) agencies are going to aggressively pursue what simply cannot be recovered.

Worst case: Validates your decision to write off.

Best case: Recovers money you otherwise gave up on / learn from it

Hospital Histories --

Advocate of more is better in this area

Names, dates, times, phone and fax numbers, addresses, titles, e-mails, relationships, baliwick, etc.

Referral back (e.g., ref. no. to another case she helped with)

Key Contacts

You never know what otherwise innocuous piece of information will be key to the denial reversal on appeal (what was said, done, or promised?)

Always professional

Pays huge dividends in appeal process!

If it sounds too good to be true . . . ASK FOR IT IN WRITING!

Fall back: shift burden -- bounce it back to them in writing (confirming

statement) thereby creating an obligation to respond if incorrect

Document everything that helps your case

Read your appeal letter.

Read it again!

Spell-check

Grammar check

Keep it as simple as the facts and amount at issue will allow

Don’t argue positions you don’t understand

Don’t cite law you do not understand

Use acronyms, but introduce and don’t go crazy

THE NOT SO OBVIOUS

Document even unsuccessful efforts (calls, faxes, e-mails, letters, smoke signals, etc.)

- Making a record

- Demonstrating due diligence

- Documenting futility in the event litigation becomes necessary

- Give them enough rope and they will hang themselves

- A litany of unreturned calls, ignored faxes, bounced e-mails, misinformation, bad citations, etc. is not good when reviewed by an impartial fact finder

Arthur and his Minions:

Your team – coding,

claims, front-end,

compliance, legal, etc.

Camelot Castle: Your

Appeals Unit in PFS

Singers and dancers:

Your crack team.

When done, it should

work seamlessly

together-- something like

Arthur’s Team in this

video.

Another Silly Metaphor (or five).

Sometimes you know the claim is going to deny even before it actually does

Know the game and the rules of the game

Make your claim / appeal stick out

Get someone to flag it / try to develop “ownership”

Escalate before, during, and after claim / appeal submission process

Intended Message: “I am serious about this claim. Give me a legitimate reason why it did not pay or pay it. I am not going away until such time as I establish one or the other.”

Don’t accept the “resubmit it” brush-off on claims or appeals (if you do, at least “tag” someone)

Pushing date forward ad nauseum ≠ payment: Do something different or write it off!

Focus on Viable Appeals / Don’t waste time on losers / If you messed up – move on!

Track Appeals (share successes / impact on baseline denial rate; $$$)

Appeals Tracking Tickler System

Ability to Measure

Identify Recurring Denial Patterns

Communicate: Actually use information to improve the processes (share with front-end, clinicians, PFS, etc.) (e.g., PA, but do not call)

Outsource When Necessary

Escalate Whenever Possible

Leverage the Patient / Employer / Oversight Agency (as appropriate)

Leverage Your Provider Representative and Other Connections

Informal Efforts (never end)

Payer Specific Appeal Check Lists (e.g., appeal cover sheet denial)

Copy Relevant Oversight Agencies (e.g., IC, CMS, AG, etc.--carefully)

AOB!!!!!!!

Authorized Representative Forms

Re-bill Less? – Appeal Earlier?

Do the Dance (comply with your contract)

Appeals Letter Database

Key Contact Database

Leverage relationships

Invite Payers to the Table

Keep Contracting Departments and IH Counsel in the Loop

Litigation??????

If you think being assertive, professionally aggressive, and persistent only counts when the appealed claims actually reverse and pay, you are missing a significant part of the calculation!

Even if you lose there is a secondary effect – not being the easy target

Human nature – move on to the easier mark or at least think twice

You are the best advocate for your patient and the hospital on such payment issues.

I can do it. Ideally though, you want to get paid prior to outsourcing for many reasons.

This is often what it feels

like when dealing with

insurance companies on

appeals.

If at first you don’t succeed, . . .

Blame your parents!

Appeal

Provider: Big Mass Medical Center (“BMMC”)

Patient: Danny D. Dealer (“DD”)

Emergency Presentation (Type-1)

2-Day Inpatient Stay

DD is Retro Medicaid Eligible With MMCO Care for All, Inc. / New Hampshire Health Plan (“NHHP”)

This is an Out-of-State MMCO Claim (also often called “Bad Debt.”)

Initial claim was billed timely

Resubmitted several times “front end rejected” and “not on file”

Claim denied numerous times for other reasons

Informal requests for reconsideration

Appeals filed timely at first and second level of appeals

Both appeals denied

Demand issued

* All names, dates, times, etc. have been changed to protect the innocent (and not so innocent).

Fentanyl is a powerful prescription painkiller that is about 100 times more toxic than morphine.

Two milligrams of pure fentanyl, which is about the size of about four grains of salt, is enough to kill an average adult.

The new variation is Carfentanyl. Has elephant tranquillizer in it. These are the amounts of heroin, fentanyl and Carfentanyl it takes to kill an average adult.

Develop an appeals specific letterhead

If you are a large institution leverage it

Good quality paper

Clear, easy to read font

No dot matrix (hard to believe you have to say this in 2018 – get a good printer)

Proper English

Useful identifying information

GOAL: Develop a reputation with payers as a provider that takes claims denials seriously and appeals of the same even more so. It will pay dividends. ** Yes, I did spell “matter” incorrectly on purpose to make the point.

• No letterhead

• No date

• No address (was on envelope)

• Undefined acronyms

• No insurance claim number

• “To Whom It May Concern”

• How did we get here?

• Bury the lead

• DRG change was not an issue

• The documentation was a new UB-04

• Who do I get back to?

• How do I get back to you?

• Most importantly—Why should I pay this claim? Good faith?

• More?

Big Massachusetts Medical Center

BMMC@bmmcserv.com

Member Name: Danny D. Dealer

Policy Number: 12-3456-78

File Number: 98765

To Whom it may concern

Big Massachusetts Medical Center does not agree with your repeated denials on this claim.

Services were provided in our emergency department under very difficult circumstances. Mr.

Dealer was in police custody on presentation and did not cooperate with our efforts to secure

insurance eligibility information. He later left the hospital AMA. The request for a DRG change

is inappropriate in this case.

We ask that you reconsider your denial on this claim and pay for the services provided, which

were provided in good faith.

Please see attached documentation to support our claim.

Sincerely,

Claims Review Specialist

Just like that letter,

this is how not to

describe the factual,

clinical, and legal

basis of your claim.

Imagine a really nice

letterhead. My skills here

are weak.

Sends a different signal,

no?

I am serious about this

claim

Date

Send in a manner that can

be confirmed

Tagged a specific person

No question they will be

able to locate this claim

Note on the warning

Corporate parent

Big Massachusetts Medical Center BMMC Rehabilitation Center BMMC Hillcrest Campus BMMC Visiting Nurses Association BMMC Medical Practices BMMC Healthcare LTC

BMMC@bmmcserv.com

210 Claims Drive, Boston, MA 02115

BMMC Claims, Appeals, and

Pre-litigation Review Department

VIA FIRST-CLASS & CERTIFIED MAIL

RETURN RECEIPT REQUESTED

GC NO.: 12 3456 7891 1234 5678 9123

January 26, 2017

Care for All, Inc.

New Hampshire Health Plan

ATTN: Ms. Wendy Waltham, Esquire

NHHP Legal Department

Paul Revere Building, 8th Floor

4000 Commercial Insurance Drive

Boston, MA 01234-5678

RE: Patient / Insured: Daniel D. Dealer

NHHP ID. No.: T-987456123

NHHP Claim No.: 666666

OOS Medicaid No.: M01288876

DOB: 10/10/1999

DOS: 01/10/2016 – 01/12/2016

BMMC Tax ID.: 243432234-1

BMMC NPI No.: 1231231231

Billed Charges: $11,823.19

BMMC Ref. No.: PL-323123-18

Dear Attorney Waltham,

Kindly accept this letter as formal notification . . .

*** WARNING ***

THIS DOCUMENT CONTAINS

CONFIDENTIAL PERSONAL & PROTECTED HEALTH INFORMATION

DO NOT REDISCLOSE WITHOUT AUTHORIZATION

If you are going to take the time to research, write, and send your appeal letter, then send it (and get it) to someone who cares and, perhaps more importantly, someone who can do something about it. Not always possible.

Pre-letter call around.

Names – Not just titles or departments.

Don’t be afraid to send it to more than one person. This can be done in address block or via cc at end. This often works to your advantage.

Who gets the letter can be crucial.

KEY - Post issuance call back (1-2 weeks)

Goal: To get someone at the insurance company to take ownership of your case

NOTE: Required fax coversheets and appeal forms. Comply, but does not preclude a more detailed letter,

argument, and attachments.

– THAT IS THE QUESTION.

Obviously, this depends partly on the value of the claim.

I would argue if your claim is greater than $2,500 the cost is worth it.

Certify it to a person, not a unit (if possible).

Priority mail (some of the same advantages).

RRR

A word on sending certified letters to P.O. Boxes:

P.O. boxes are often required for 1st and 2nd level appeals. Usually, certifying to a P.O. box is a waste of time. There is a USPO process, but it is hit or miss. (I guess that is many words)

A “RE” should be included

(make it easy for them)

Give as much info as possible, as quickly as possible, to allow the intended audience to find the claim as quickly and easily as possible

The Joe Friday part of the letter (“Just the facts ma’am”)

Patient name, DOS, insurance ID no., group no., claim, appeal, and tracking numbers, log numbers, etc.

Give them what you’ve got

This can easily be automated

Your own reference number is often helpful for that desired “call-back.”

Document, document, document!

Call tracking and reference numbers

Copies of Everything

Certified Mail / RRR

Facsimile Receipts

E-mails and Receipts

Restatements of VM Messages in histories

Affidavits

Be the Aggressor (but not too much so) (pre and post letter contact)

Always Expect to be Paid

Keep Equity on Your Side (professional)

ID Patterns (report back)

Do Not be the Easy Mark

Acknowledge Errors and Capitulate, when appropriate

(continued)

January 26, 2017

Care for All, Inc.

New Hampshire Health Plan

ATTN: Ms. Wendy Waltham, Esquire

NHHP Legal Department

Paul Revere Building, 8th Floor

4000 Commercial Insurance Drive

Boston, MA 01234-5678

RE: Patient / Insured: Daniel D. Dealer

NHHP ID. No.: T-987456123

NHHP Claim No.: 666666

OOS Medicaid No.: M01288876

DOB: 10/10/1999

DOS: 01/10/2016 – 01/12/2016

BMMC Tax ID.: 243432234-1

BMMC NPI No.: 1231231231

Billed Charges: $11,823.19

BMMC Ref. No.: PL-323123-18

Dear Attorney Waltham,

Once you get the letter there and have their attention -- tell them why you are writing and what you expect in the first two to three sentences

Don’t beg, plead, or apologize (you’re the good guys)

Professional tone

-aggressive, not abrasive

-persistent, not PITA

Quickly tell them why they should reverse their prior determination!

If possible, do not send the letter cold!

--set the stage for reversal

To Whom it may concern

Big Massachusetts Medical Center does not agree with your repeated denials on this claim.

In law school we learn “IRAC.” This is a useful shorthand, but I find it easier to

approach the appeal / demand letter as aimed at convincing the reviewer

that there really is no other alternative resolution on the claim but payment.

That was it! Heck, we knew that before we even opened the letter.

Be “The Killer

Rabbit of

Caerbannog!”

Warning:

This video contains

what some may

consider graphic

content.

Look away now

if you are squeamish.

(continued)

Kindly accept this letter as formal notification that Big Massachusetts Medical Center (BMMC) has retained my firm to represent its interests in

securing the proper payment due on the above-referenced out-of-state (OOS) emergency services and inpatient admission claim for the your

insured Danny Dealer (DD). This letter shall serve as a formal demand for payment pursuant to Massachusetts General Laws (M.G.L.),

Chapter (c.) 93A, § 11. BMMC maintains that Care for All, Inc., New Hampshire Health Plan (NHHF), acting in its capacity as a Medicaid

Managed Care Organization (MMCO) for New Hampshire Medicaid, their servants, agents, and/or employees have engaged in unfair and

deceptive acts and practices in regard to their processing of this claim and the related appeal submissions for the goods and services provided

to DD. These unfair and deceptive acts and/or practices likewise constitute violations of M.G.L. c. 176D, prohibiting such unfair claims

settlement acts and practices by any entity engaged in the business of insurance. Additionally, for the reasons outlined in more detail herein,

BMMC asserts that the refusal to timely process and pay these claims further amounts to a violation of a number of federal laws, including the

dictates of the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), as amended.

Is there any doubt what I am asking for and on what basis I am doing so?

Remember, this is not (ideally) the first contact with the insurer. This would

follow after the first and second level appeals, if appropriate. I also would

likely have had prior informal contact in an effort to resolve the dispute (I

would have “tagged” someone).

When the insurance company reads the first one they think, “o.k. hospital is taking a shot at it and asking for a reversal.” – How generous do I feel today?

When insurance company reads the second one they think, “o.k. they are taking this denial seriously and they are now going to tell me exactly what went wrong—why we (the insurance co.) should pay.”

We may still disagree in the end, but to this point I believe I have signaled to NHHP this claim matters to me and my client. You need to send that same signal!

I have hopefully impressed upon them (NHHP) that we disagree with the denial and do not intend to go away easily—if at all.

DO

Focus - strongest argument

Concede, when necessary

Establish credibility

Point out flaws in their decision

Tie facts to argument

Draw logical conclusions

Tell them what you want, what you expect, and what you plan to do (and sometimes what you don’t) if you don’t get it

DON’T

Get lost in the minutiae

Ignore obvious weaknesses

Get personal

Offer no cover (“perhaps”)

Ignore facts altogether

Make up facts

Make unsupportable statements

Don’t make hollow threats

Perform a Basic Analysis of Appeal / Demand Viability

What is the “real” reason this claim is not paying? (this can morph and often not what was actually appealed)

Is there a rule, regulation, contract provision, principle of law, or equity argument that applies?

Why does the rule apply (control) factually and legally?

What do you want and why does the foregoing dictate that the insurance company give it to you?

Not all claims should be appealed (mistakes happen and deadlines get missed – move on!).

Know what the claim should have paid.

Beware “principle” cases.

Cost/benefit analysis.

Breach of Contract

Promissory / Equitable Estoppel

Unjust Enrichment

Detrimental Reliance

Mistake Fraud Regulatory Authority

Covenant of Good Faith and

Fair Dealing

Equitable Principles

PPACA There are

many, many more!

Describe the Services Provided –Again, you are the good guys.

Very often absent in the provider appeal letters I review and, in my opinion, a critical omission in many cases. This is where you show you are the good guy. You made the patient better or saved a life (or at least tried). Definitely should be there if a compelling story.

(continued)

The medical record and documentation previously submitted on appeal to NHHP reflects that Mr. Dealer presented to the BMMC Emergency Department (ED) at 11:55 pm on January 10, 2016, accompanied by the police after having allegedly swallowed a 2.8 gram bag of fentanyl. Exhibit 1. He was appropriately evaluated, including lab tests and x-rays and, while determined to be in no acute distress, was admitted to the ICU in light of the potential lethal nature of his having ingested opioids. GoLytley was administered to assist him in passing the bag safely. He was actively monitored for toxicity in case the bag ruptured, whereupon he was expected to need immediate intubation. On January 12, 2016, while being monitored and further tested, Mr. Dealer declined any further medical intervention and signed out of BMMC against medical advice. Exhibit 2.

123 Claims Drive ▪ P.O. Box 7777 ▪ Boston, MA 02115

N.B. Need to be cognizant of HIPAA “minimum necessary” requirements and state law as they relate to disclosure

(TPO Exceptions). Also, internal hospital policies.

Need to determine and explain exactly what happened with the claim (claims processing history)

This can make or break an appeal / demand

Good hospital claims processing and appeal histories are key

Hang them with their own words and actions

Sometimes less is more, but often more is painful!

Also sends a signal

Exhibits? Are you kidding me?

Diligence (reverse: ask for documentation to support their denial)

Document, document, document!

I am not going away! (professionally persistent)

This was key in the Danny Dealer case!

Depends on the issue in the appeal

When possible, the documents alone should tell the story outlined in your appeal (eliminate any wiggle room - chronological)

-- Claims processing trail -- Consultation reports

-- Medical record -- Expert opinions

-- UB-04 / 1500 -- Coding support

-- Required appeal forms / fax cover -- Billing support

-- Referrals -- Contract clauses

-- PA proof -- Authorizations

-- Written communications -- Clinical guidelines (IQ, Milliman, etc.)

-- Treatment plans -- Insurance specific forms

-- Hospital history (redacted?)

-- Affidavits

-- Legal citation and back-up

Now bear with me on this next slide as you are going to think I have lost my mind!

(continued)

At the time of his presentation at the BMMC’s ED Mr. Dealer was not covered by any known insurance and was accordingly registered as a “self-pay.” BMMC initiated a New Hampshire Medicaid eligibility application. His eligibility was subsequently approved on or about February 17, 2016 and benefits were reportedly made retroactive to cover the dates of service at issue herein. Mr. Dealer was assigned NHHP as his MMCO sometime thereafter. As a non-contracted OOS Medicaid provider with NHHP, given the emergency nature of the presentation, and since eligibility was not established at the time of his presentation at BMMC, the hospital was unable to notify either New Hampshire Medicaid or NHHP or seek prior authorization for Mr. Dealer’s ED presentation or related ICU admission. Once his eligibility was established, an electronic claim was submitted on February 22, 2016. This claim was then “front-end rejected” twice and reported as “lost” once. It was finally accepted into NHHP’s system and denied on or about April 18, 2016, under claim number P12345678 for “No Authorization Obtained.” Upon telephone inquiry to Tabitha at NHHP on Aril 20, 2016 to inquire how one might prior authorize services with an insurance that was not established at the time, the BMMC representative was advised the claim was “voided from the system for administrative reasons” and there was nothing that could be done. A request for reconsideration was submitted on this same date.

Having received no response to the reconsideration request, on April 29, 2016 a BMMC representative inquired and learned from Tony at NHHP that the reconsideration request had allegedly been denied on an electronic Explanation of Benefits dated February 13, 2016 under reference number P24681357 for reason “QW – No Record of Prior Authorization for Service Billed.” Exhibit 3. Tony appeared to agree that the denial made no sense since it was and ED presentation which predated eligibility and BMMC ‘s submission of a claim. Tony advised the claim would be put back in for processing. On May 5, 2016 BMMC learned from Melody that the review department was seeking medical records. These were secured and forwarded to the NHHP address provided by Tony previously on that same date. From May through July 2016 the claim was reportedly “under review.” In August a BMMC representative was told a letter issued indicating that “after further review the NHHP has denied the appeal” for having not met “InterQual Criteria 2016.3”. The entire claim was reportedly denied, including the federally mandated ED charges. This erroneous medical necessity denial was timely appealed at the second level under cover letter dated September 8, 2016. Exhibits 2 and 5. On inquiry on October 27th Leslie at NHHP advised the appeal was still in process. On November 18, 2016 Kimberly advised that there is a note in the system indicating the prior appeal denial had been upheld, but that the system had not generated a letter to the provider hospital. A NHHP remit evidencing the denial was received on December 10, 2016. The matter was referred to my office.

The claim . . .

Claims Processing and Procedural History

Cat skinning reminder.

I fully appreciate that this letter is starting to look like a novel, but this is obviously scalable

You do you and I’ll do me. (paid by the word)

Automation helps (extensive database)

The same issues repeat (god do they repeat!)

Anyone in the room have any doubt that I am serious about this claim denial???

Impressions / signals / messages

“Run it up the flagpole” letters fool nobody

When we get to the end, I encourage you to ask yourself – If you were a judge and you had to decide this case, would it be hard? Would I win?

KEY POINTS

• Retro

eligibility

• Non-par

provider

• Front-end

rejected

• Lost

• Emergency

• PA denial

bogus

• Med Nec

denial

bogus

• Appeal

process is

bogus

THE KNIGHTS WHO SAY “NI”

I actually love insurance companies. I see only the problem cases. Always seek to work informally first.

Untimely (claim / appeal / document submission) – Is it really? confirm facts / affidavits / K / good faith & fair dealing (GF&FD)

Lack of Prior Authorization / Pre-certification / Notification – Keep ’em straight. Look at the specific plan policies and procedures.

Medical Necessity - medical criteria / ask for name and credentials of reviewers / peer to peer review / applicable internal / external standards or guidelines (e.g., Inter-Qual / Milliman) / Evidence based criteria? / Any other documents / people used? / What was the alternative care to be?

Recoupments / Refund Demands – Resist! Resist giving it back before case is analyzed / formally object to any money taken back or offset accounts / unjust enrichment / unlawful taking / K / GF&FD / preservation of rights

Misquote of Benefits / Retroactive Insurance Coverage Changes - Promissory estoppel /detrimental reliance / unjust enrichment / K / hospital histories / document well

Different Procedure Performed Than PA or Billed - (N.B. -- surgery cases. Update the PA)

IP v. OP - K / rules and regulations / deference to treating / attending physician

Out-of-Network - Was there a choice? /Was it really out-of-network? / common law principles / quantum meruit / emergency and PA impossibility

Fee Schedule Issues – Push back. Check it. Reasonableness / K / liar, liar, pants on fire

Silent PPO - review contracts / consideration / notification / know the limitations in your K / know what you should be paid – expected reimbursement / notification when payers added / borrowed discount? / No quid pro quo

Usual and Customary - Don’t accept at face value / What are they using? / review regulations / demand detail on denied charges / recent favorable litigation striking down schedules / was the service really related to job in W/C context (medical not job related)

Contractual Disputes - Does k deal with interest, late payments, underpayments, appeals requirements, etc. (insurers often say the contract says one thing and then I cannot find it –nor can they!) – show me!

Invalid CPT / HCPCS Codes or Use of Modifiers – Verify / Push back / POA indicators

Observation Level of Care - request criteria / confirm validity and applicability / get a written medical response / use peer-to-peer opportunities

Pre-Existing Conditions - HIPAA limitations and new state law limitations / Is it really pre-existing? / definition in plan / check allowable exclusionary periods and count / prior credible coverage / newborns and adoptees rules / pregnancy exception / MGL 176N §2, 176M §3(b)(1-2) / HCR

Patient Must Appeal Brush-Off - Prove it / ERISA / sometimes true, but don’t buy it without proof / enlist patient and/or family’s cooperation / AOB can be key to this hurdle

Lack of Patient Cooperation – “We sent out a form.” Look at K / state law / sometimes true, but don’t buy it without proof / enlist patient and/or family’s cooperation / Pre-existing condition letter / get the form yourself / Not asking for PHI /AOB or other release documents

Medical Record Requests Not Fulfilled – Lost (* HIPAA) / In transit / miscommunication / wrong department / not forwarded / verify / proof it was sent / verify if other department responsible and sent

Med / Psych Carve–Out Finger Pointing - Push back! It is one or the other, often both.

Now we have put our finger on the “real” reason the claim denied –alleged lack of medical necessity

Now we need to explain why it makes sense for NHHP, it’s corporate parent, and/or NH Medicaid to pay this claim (you don’t care which one– leverage!)

Not asking (and definitely not telling) you to be lawyers, but some knowledge of the law and legal concepts is important.

(see disclaimer at end of presentation)

First you have to know them

Then you must be willing to assert them

“You have the right to remain silent, anything you say can and will be used against you . . .” Useless if you blather on.

Providers have rights (albeit limited) and (perish the thought) even some limited laws that protect them too.

M.G.L. c. 93A – Consumer protection (New Hampshire and Vermont have similar statutes, trust me)

M.G.L. c. 176D – False claims statute--the sister statute to 93A

M.G.L. c. 176G §6 and 176I §2 – Prompt payment (interest)

M.G.L. c. 152 §50 – WC 115 claim for conciliation

M.G.L. c. 111 § 70A – 70-D – MA Hospital Lien Statute (MVA / torts)

M.G.L. c. 176M §3 (non-group HI), 176A §8U (non-profits), 176B §4U (MSC), 176G §5 (HMO) and 176I §§ 1 & 3(b)

(PPO) – §1932(b)(2)(A)(i) (MA) – No PA of Emergency Services (pre-stabilization) (UR)

42 USC 1395dd – EMTALA

28 U.S.C. § 2412 - EAJA – Fed. “Prevailing Party” - Interest / fees / cost

Title 29 CFR § 2590.715-2712 – “Prospective Rescission” in termination of benefits

105 CMR 128.100 – Treating Physician / covered benefit and Medically Necessary

105 CMR Medical Necessity – minimum requirements for validity

105 CMR 128.000 – appeals and grievances through patient

COBRA 1996 / MA Mini-COBRA (M.G.L. c. 176J, § 9) - (short timelines / must pay premiums) (DOL and OCABR)

PPACA – Separate seminar alone

Myriad of court decisions (caselaw)

There are many, many more!

** But Dennis, this is New Hampshire / Vermont AAHAM. A note about state laws.

Don’t believe the hype – ERISA plans are not always exempt from state law

Distinction: Fully-Insured (state law) vs. Self-Funded (ERISA-DOL)

Even if self-funded, still not completely out of the woods (if insured in any way (e.g., stop-loss or excess/stop-loss insurance))

Very complex area. Don’t assume – if you do not know, seek guidance

Ask for the SPD (Summary Plan Description)

Leverage patient, employer, TPA, and trustees (when appropriate)

There are some favorable clauses, case law, and DOL guidance

“Unfair and deceptive acts and practices”

Commonly called the:

“Consumer Protection Statute”

Business to Business is Section 11

“Level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce”

Luckily for providers, the sister statute 176D, lists a number of things that can be unfair and deceptive in the business of insurance

Anyone care to venture a guess as to why these sister statutes get lawyers so very excited?

Because insurers and courts do and it is quite broad and allows a claim to treble damages (that’ll get their attention):

Misrepresenting pertinent facts or insurance policy provisions relating to the coverage at issue

Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies

Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies

Refusing to pay claims without conducting a reasonable investigation based upon all available information

Failing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed

Failing to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear

Compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds

Delaying the investigation or payment of claims by requiring that an insured or claimant, or the physician of either, submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information

Failing to settle claims promptly, where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage

Failing to provide promptly a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement

Failure to maintain complaint handling procedures

Failure of any person to maintain a complete record of all of the complaints which it has received since the date of its last examination, which record shall indicate in such form and detail as the commissioner may from time to time prescribe, the total number of complaints, their classification by line of insurance, and the nature, disposition, and time of processing of each complaint. For purposes of this subsection, “complaint” shall mean any written communication primarily expressing a grievance

NHHP has improperly denied payment on Mr. Dealer’s claim. First and foremost, the denial for an alleged lack of medical necessity hardly passes the laugh test. He ingested a bag of fentanyl! Clearly he was in need of emergency medical intervention. That this type of presentation meets and far exceeds the federally mandated “prudent layperson” standard in beyond question. That he chose to later eschew that effort and leave the facility against medical advice does not change that fact. . . . EMTALA

in determining the need for and medical necessity of subsequent inpatient ICU admission BBMC used well-established, industry standard and evidenced based acute inpatient guidelines. BBMC clearly articulated through medical documentation and related records that Mr. Dealer met applicable (General Medical – Intermediate) InterQual criteria for inpatient admission under the exigent circumstances his case presented. See Exhibit 2. . . . POSS

CONTRACT / GF&FD / EMTALA

Applying the required “prudent layperson” standard alone to the ED care provided clearly demonstrates that this denial is specious at best. . . . EMTALA

/ MEDICAID POLICY / AGENCY

Additionally, there is no written notice outlining the hospital’s statutorily required appeal rights on such a medical necessity denial. . . . POSS K / STATE

and FEDERAL LAW

Putting aside for the moment the good faith provision of services, NHHP’s failure (which is imputed to its principal—New Hampshire Medicaid) to apply the required “prudent layperson” standard to such Type 1, ED claims, and the fact that NHHP has be unjustly enriched by having services provided to its insured on behalf of New Hampshire Medicaid for which it has not paid, the processing history of this claim supports that NHHP’s appeal processes and procedures are merely artifice designed to give the appearance of a full and fair adjudication of claims and related issues. . . . ANGENY / GF&FD /

UNJUST ENRICHMENT / 93A/176D / MEDICAID LAW / AGENCY

…. BBMC is not a participating provider with NHHP. They would therefore be unaware of and, perhaps more importantly, not bound by any contractual limitation. And, if even they were so bound, this would clearly not serve as a legitimate basis to deny the entirety of the claim, particularly the emergency evaluation and stabilization services provided in the ED. GF&FD / EQUITY / EMTALA / MEDICAID LAW

Tell them how their actions or inaction relate to or caused this erroneous claim denial.

Sometimes dealing with

insurance denials feels

kind of like this.

[T]he claim involved is for Type-1, Emergency Services. See, Exhibit 1, UB-04 at Box 14. and

Exhibit 2. In light of this fact, BMMC maintains that NHHP (and arguably Care for All, Inc. its

parent and New Hampshire Medicaid for whom it is acting as agent) now stand in violation

of certain state and federal laws pertaining to Medicaid claims processing, as well as the

dictates of the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), and

Section 1867(a) of the Social Security Act,. . ..

“Emergency services” are intentionally defined broadly … to mean “covered inpatient and

outpatient services that are needed to evaluate or stabilize an emergency medical condition

that is found to exist using a prudent layperson standard.” EMTALA and related interpretive

guidelines require payment for the evaluation and emergency services stabilization

provisions without regard to any asserted pre/post stabilization notification/authorization

requirements. A related series of “State Medicaid Directors Letters” (SMDLs) supports that

this prohibition extends not only to Medicaid agencies, but their agents (e.g., MMCOs like

NHHP) as well.

(continued)

BBMC maintains that the claim was timely billed relative to when it first

established and learned of your insured’s Medicaid and NHHP eligibility, at all

times appropriately and timely followed-up on the claim, and that its appeals

more than adequately outlined its factual and legal position, including

demonstrating the medical necessity for the subsequent inpatient admission

given that DD had ingested a potentially fatal drug dose.

We are not looking for perfect prose here. Want to make the points, demonstrate

why the law or facts compel what you want – to get paid. Your letter may be shorter

… though probably not longer …. There are more ways than one to skin a cat!

Paginate

Use internal and external cross-references

Put identifying info. on each page

Date each page

(continued)

[top of each page]

BMMC / NHHP / DD Page 3 of 3

Ref. No.: PL-323123-18

January 26, 2017

You have to be persistent.

Wherefore, pursuant to M.G.L. c. 93A and c. 176D and the forgoing state and federal authorities, our office is demanding immediate payment in full on behalf of BMMC for the amount lawfully due on the unpaid billed charges totaling $11,823.19 for the above-referenced claim, plus interest at 1.5% per month (See, Exhibit 1). If we do not receive payment within thirty (30) days from your receipt of this letter, we will have no alternative but to consider NHHP’s actions/inaction in this regard as constituting unfair and deceptive business and/or unfair claims settlement practices, as well as violations of its EMTALA and related federal law obligations in contravention of the above-referenced statutes. We will then advise BMMC of its available options including, but not necessarily limited to, initiating litigation. Any such action will not only be for violations of state and federal law, but will also carry with it additional claims for attorneys’ fees, costs, interest under Massachusetts’s Prompt Pay Statute, as well as a demand for double or treble damages, to the full extent permitted by law. BMMC further reserves the right to file a complaint with the Centers for Medicare and Medicaid Services and preserves any and all rights it may have under state or federal law as to recourse directly against New Hampshire Medicaid, which will likely be named as a party in the event more formal avenues of recovery should become necessary.

Not wasted space!

Remind them what you want

Use CCs to your advantage

Tell them exactly who to get back to

-- make it easy (direct phone, secure fax, e-mail, other?)

Document your attachments (“enclosures” or “attachments”)

Set timeline and expectation for response

Offer an “out” (huge!!!!) (call me, despite this letter I am reasonable)

Thank (professional – not personal)

(continued)

If you have any questions or concerns relative to this matter, please direct them to my attention as the attorney for BMMC. Any check issued in payment on this claim should be made payable to BMMC and forwarded to my attention. In the alternative, payment may be made directly to BMMC through the normal remittance advice process, but a copy of the relevant remittance advice should be forwarded to my attention so that I may properly advise. Should I fail to receive a reply within thirty (30) days of your receipt of this letter, I will assume there is no desire or intention to resolve this matter informally and will advise BMMC accordingly.

Thank you for your time and anticipated prompt attention to this matter.

Very truly yours,

Dennis S. Scott

Enclosures (Exhibits 1- 5; 27 pages)

cc: Legal file

Care for All, Inc.

ATTN: Legal / Compliance Department

Contracting Department

Insurance Ombudsman

Insurance Commissioner

Attorney General

Home Office

Patient

Office of Patient Protection

In-House Counsel

Outside Counsel

TPA

Plan Trustees

Medical Director

Government Officials

Compliance

Other?

* With appropriate authority, authorization, and/or consent.

Your Contracts

Plan Policies, Plan Web Sites, Plan Documents, etc.

State Law

Federal Law

Federal / MA Mandates

Case Law

Insurance Commissioner

COB Requirements

Billing and Coding Guidelines

DHCFP

DIA

IQ / Milliman

ERISA SPD

Department of Labor Guidance

Attorney General Regulations

Code of MA Regulations

Workers’ Compensation Rules and Regulations

CMS

OPP Documents

Web-MD

Google

Peers / Professional Groups

PPACA

Me

Many, many others.

Staples are not the enemy

Be accurate with dates (if you record it on 1/1/18 in hospital history, but actually did it on 12/1/17 say so.

Cross-reference

If you don’t argue it, you potentially waive it

Timeliness denials are often wrong! (look at K, counting rules, weekends, holidays, “no harm,” etc.)

Document phone numbers (direct lines) so the person behind you can recreate

Use silly positions to your advantage (2.8 grams of fentanyl is enough to kill an elephant / “there is nothing that can be done”)

Exhaust administrative and K remedies

Informal is great, but don’t miss the deadline (even if just to CYA)

This is the “rubber meets the road” stuff

Not easy

Can be very time consuming

Labor / resource intensive

Frustrating (at times)

Yet, if you have a professional and aggressive approach based on an expectation of getting paid for the services provided, the efforts will pay dividends in more ways than one.

Kindly note that this presentation and any such similar presentation is necessarily limited by virtue of the time allowed for presentation of the presentation by the presenter doing the presentation. Any subject as vast and complicated as Writing Effective Appeal Letters will always be limited in scope and specifics. I have attempted to cover the basics of the subject here, including some letter drafting and appeals processing tips, as well as some of the known impacts thereon. That is I have, as they say, touched there mere tip of the iceberg. Hopefully something I have said is helpful to you. In addition, the regulations, rules, laws, edicts, pronouncements, and other relevant authorities are changing constantly. If you have specific inquiries you should always consult the applicable rules and regulations and a competent attorney. If you are still reading this I must say I am thoroughly impressed. You will not be one that has trouble with the persistence part of this task. Patrick M. – Did you get this far? Notwithstanding the verbose nature of this missive, its multiple asides, and nonsense assertions (huh?), if I can be of further assistance as you deal with these types of issues going forward in your work, please do not hesitate to contact me at your convenience. I believe my contact information follows on the next page. Isn’t health care finance a fun and enjoyable enterprise with some awesome folks. Despite the innumerable lawyer jokes and the general view of the profession as one that is not responsive to its clients’ needs, I actually do answer my own phone and am very likely to call you back long before you retire. As I was saying, however, this information is a summary of what are often very fact specific and complex legal issues and may not cover all the "fine points" related to a specific situation or deal with important issues such as jurisdiction. Accordingly, none of the foregoing is intended to be legal advice. It is intended to make you think about possibilities. You are probably not a lawyer. If you wish to be one please go sit through “Con Law” just like I had to and earn the degree. Until such time you should proceed with caution, take what anyone says to you “with a grain of salt,” read the package inserts on medications, and check calories before consuming. Do not eat raw or uncooked foods. Any decision to proceed should always be made in a one-on-one consultation with an attorney or at least someone who acts like one. Now had you read this first would that have changed how you viewed this presentation or not? Impressions do matter. They absolutely matter when you are trying to convince a reluctant payer that your position is correct. We are what we repeatedly do. Excellence then is not an act, but a habit. Not sure who said or wrote that but I think it applies. Do not wing it! Do your best to PREVENT denials. If that fails and you are correct, then APPEAL, but INVESTIGATE first to ensure that when you thought you were right you were not mistaken. Then, and only then, if you believe you are still correct then DEMAND and proceed accordingly. In all seriousness, I really appreciate your valuable time and courtesies. Not valid in Alaska or Hawaii. Void where prohibited. Thanks.

Dennis S. Scott, JD, CHC, CHPC, CCEP

Compliance & Privacy Officer

Assist. Dir. of Business Development

PV Kent & Associates, P.C.

19 Locust Street

P.O. Box 2164

Danvers, MA 01923-5164

Telephone: 978.777.9998, Ext. 304

Facsimile: 978.777.9282

E-mail: dscott@PVKent.com

Web Page: www.PVKent.com

Admitted in MA, NH, and NY.