Title_22_and_9_Presentation - Louisiana Chapter

Louisiana’s Billing and Disclosure
Act & the Medical Lien Statute
Stephen J. Buccola, Esq.
Supervising Attorney
RevClaims, LLC
© 2016 RevClaims, LLC. All rights reserved.
Introduction
• Overview of Topics
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Medical Lien Statute (La. R.S. 9:4752)
Billing and Disclosures Act of 2003 (La. R.S. 22:1874)
Discuss interplay between these statutes
Discuss application of these statutes to providers
Evaluate practices to minimize exposure to litigation
Identifying Encounters
• “The 5%”
– Third party liability claims (MVA, Slip/Fall, Workers
Comp) make up about 5% of all provider claims
– However, this 5% is the last place to achieve 100%
recovery and can have a significant impact on
budgeting and allocations
Identifying Encounters
• Types of Encounters Affected
– Primarily motor vehicle accidents (MVAs)
– Also includes slip and falls and general premises
liability
• NOTE: Workers Compensation is not applicable
Identifying Encounters
• Methods to Identify Encounters
– Registration is the best way
• E.g. – EPIC registration prompts “Accident Related –
Y/N”
– ICD-10 Filters
– DX Code
Louisiana Medical Lien Statute
La. R.S. 9:4752
A health care provider, hospital, or ambulance service that
furnishes services or supplies to any injured person shall have a
privilege for the reasonable charges or fees of such health care
provider, hospital, or ambulance service on the net amount payable
to the injured person, his heirs, or legal representatives, out of the
total amount of any recovery or sum had, collected, or to be
collected, whether by judgment or by settlement or compromise,
from another person on account of such injuries, and on the net
amount payable by any insurance company under any contract
providing for indemnity or compensation to the injured person. The
privilege of an attorney shall have precedence over the privilege
created under this Section.
Louisiana Medical Lien Statute
La. R.S. 9:4752
• What is it?
– Statutory right of a medical provider to lien charges
associated with treatment for an accident claim
• What does it cover?
– “Net amount payable to the injured person [or
representative] out of the total amount of any recovery
collected . . . under any contract providing for indemnity
or compensation to the injured person.”
– E.g. insurance / settlement money
Louisiana Medical Lien Statute
La. R.S. 9:4752
• Procedure to Secure Lien
– Must be delivered by certified mail, return receipt
requested, prior to payment of money
– Name and address of patient
– Name and address of provider
– Sent to the alleged liable party, patient’s attorney,
patient, and any insurance carrier who may cover a
party
• Once secured, the recipient is “on notice” and
required to protect the provider’s interest
Louisiana Medical Lien Statute
La. R.S. 9:4752
• Practical Application – How does it work?
– Once lien sent, recipient “on notice” of the lien
– Receiving party must, by law, protect provider’s interest
• List name of provider on payment
• Payment made directly to provider
• Lien Impairments
– If payment sent without honoring lien, payee is responsible for
reasonable charges up to the amount of the payment issued.
– E.g. - If lien is for $1,000 and insurance pays $800 to patient,
insurance is liable to provider for $800
Louisiana Medical Lien Statute
La. R.S. 9:4752
NOTE: the Medical Lien Statute does not apply to
Workers Compensation accidents!
Louisiana Medical Lien Statute
La. R.S. 9:4752
• Example #1 of Medical Lien at Work
– Patient is involved in motor vehicle accident with
another car. Patient provides their insurance carrier
(State Farm) and other vehicle’s insurance carrier
(Allstate).
– A lien can be sent to both State Farm and Allstate to
cover cost of treatment
Louisiana Medical Lien Statute
La. R.S. 9:4752
• Example #2 of Medical Lien at Work
– Patient is involved in motor vehicle accident with
another car. Patient calls hospital to say she has hired
an attorney to represent her.
– A lien can be sent to the attorney to cover cost of
treatment
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
• History
– Passed in 2003 to combat concerns of improper billing
practices
– Designed to require providers to honor insurance
contracts as primary
• Who does it apply to?
– “A contracted health care provider”
• A health care provider that has entered into a contract or agreement directly
with a health insurance insurer or with a health insurance insurer through a
network of providers for the provision of covered health care services.
• Hospital contract will govern.
• E.g., hospital ER, physicians, ambulance, rehab, etc.
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
• “Improper Billing Practices” Prohibited:
– Discount Billing – collecting from a beneficiary an
amount in excess of the contracted reimbursement rate
for covered services
– Dual Billing – collecting from a beneficiary an amount
that is a health insurer’s liability
– Any amount in excess of the contracted reimbursement
rate for covered health care services
***Collectively known as “balance billing”
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
• What is not prohibited?
Copayments
Deductibles
Coinsurance
Payment for non-covered or non-contracted health care
services
– Other amounts identified by the health insurance
insurer as the liability of the enrollee
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Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
Scenario #1
Total charges:
$10,000.00
Insurance Payment:
$4,000.00
Insurance Adjustment: $6,000.00
Balance
$0.00
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
Example of balance billing
Total charges:
$10,000.00
Insurance Payment:
$4,000.00
Insurance Adjustment: $6,000.00
Insurance Adjustment: ($6,000.00)
Patient Balance
$6,000.00
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
Scenario #2
Total charges:
$10,000.00
Insurance Payment:
$4,000.00
Insurance Adjustment: $5,000.00*
Balance
$1,000.00
*Insurance EOB lists copay of $1,000.00
A lien can be sent for $1,000.
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
• What about government plans?
– Title 22 does not apply to Medicare (federal law)
– Title 22 does not apply to Medicaid (state law)
• La. Admin. Code 50:8343 requires Medicaid to be a payor of last resort
– Title 22 does not apply to Tricare (federal law)
– Title 22 does not apply to VA (federal law)
• What about self-funded plans?
– Treat as managed care
When in doubt, bill it out!!!
Health Care Consumer Billing & Disclosure
Act of 2003
La. R.S. 22:1874
EOB is KEY!
Legal Problems Emerge
• Can a provider file a lien for full charges if the
patient has private health?
– Attorney General Opinion in 2005 said “yes”
– A.G. stated the filing of a lien did not violate Title 22
because the lien acts as a security device
The Storm Begins
• How does the lien law apply when patients have
private insurance?
– Under Title 22, a patient’s private health insurance
must be billed
• Desselle v. Acadian Ambulance Services, Inc.
(2012)
– Ambulance refused to bill private health insurance and
would pursue full charges against automobile insurance
– Court found this practice to violate Title 22
$17 MILLION DOLLAR VERDICT
The Anderson Decision
• Anderson v. Ochsner Health System (2014)
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Pt Anderson involved in MVA
Insured by UnitedHealthcare
At the time of accident, hospital had contract with UHC
Patient presented UHC cards at registration
Hospital sent lien for full charges to Anderson’s attorney
and did not (“refused”) bill UHC
The Anderson Decision
• Court’s major holding: Title 22 provides a private right of
action for a patient to bring a lawsuit against a provider
• Supreme Court also found that the mere filing of a lien
constituted “an action at law” against a patient
• Recall: the Consumer Billing and Disclosure Act prohibits
maintaining an action at law against an enrollee
• Why? Because “legal consequences attach when the lien
is ignored”
The Anderson Decision
• So what does Anderson mean for providers?
• First, a violation of the Billing and Disclosure Act can be
brought by any patient
• Second, the filing of a lien is considered an “action at
law” against an enrollee
• Third, providers who followed the practices indicated by
the Attorney General are now exposed to potential
litigation!
Effects of Anderson: The Litigation Storm
Big Question Remains
What can providers do to create financial security while
remaining compliant with Title 22?
Effects of Anderson: The Litigation Storm
• Let’s review what has been established:
– Title 9 provides a medical lien for providers
– Title 22 requires providers to bill private health first and
not improperly pursue a patient for more than contract
rates
– Filing a lien for full charges / not billing health is a
violation of Title 22
Billing Options for Providers
1. Forego filing of a lien altogether
– Ultra-conservative option
– However, provider abandons ability to secure recovery
of coinsurance, copays, deductibles, or non-covered
charges
Billing Options for Providers
2. File lien for expected contract amount
– Most-risky option
– Requires a provider to make an early estimation of
expected reimbursement rate
*** This theory has not been evaluated by the courts and
may subject a provider to litigation
Billing Options for Providers
3. Delay filing of lien
– Wait until insurance has paid and file the lien for the
copay/coins/denied amount
• EOB is key
– Most safe option, subject to limitations
• Delays for medpay
• Settlement prior to lien
• Requires oversite to insure correct values are listed
Conclusion
While the provider lien statute is a great tool, proactive steps
should be taken to ensure compliance within Title 22.
Contact Information:
Stephen J. Buccola
sbuccola@revclaims.com
P: 601-345-8500
F: 601-345-8533