Right to reimbursement

Courts in at least one state -- Florida -- say health plans should be accountable for payment delays or underpayments to out-of-network doctors treating emergency cases.

Posted Dec. 4, 2006.

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The law often requires physicians and hospitals to provide emergency care. But the law can be a two-way street. Other statutes ensure -- at least when the patient is insured -- that those who have provided the care won't go wanting for payment.

It sounds simple enough. But health plans often have complicated the matter by determining that the law doesn't necessarily apply in cases where an out-of-network physician is the one delivering treatment.

Fortunately, courts are starting to recognize that health plans deserve to be called on the carpet for their actions.

Three Florida courts -- its Supreme Court and two state appellate courts -- have ruled recently that under the state's emergency treatment, HMO and prompt-pay statutes, physicians and hospitals may sue health plans whom they believe are engaging in delaying reimbursement or underpaying them when the checks do arrive.

With the right of redress established, the Florida courts have sent a clear signal to health plans in that state -- and a message that rightfully should resonate in other states where similar cases are being argued -- that they can be held accountable for their actions. This is just as physicians would be held accountable if they refused to provide mandated emergency care.

A friend-of-the-court brief written by the Florida Hospital Assn., the Florida College of Emergency Physicians, the Florida Medical Assn. and the AMA in Westside EKG Associates v. Foundation Health underscored the frustration of out-of-network physicians seeking payment for emergency care:

"If providers cannot enforce the very statute that the Florida legislature passed (and repeatedly tightened via amendment) to ensure the prompt payment of provider claims, they are left, as Voltaire said, like the proverbial blind men in a dark room looking for a black cat that isn't there."

In the Westside case, which had wound its way through the courts for five years, the Florida Supreme Court on Oct. 19 ruled unanimously that the state's HMO act allowed the cardiology group to sue health plans for failing to comply with the state's prompt-pay law. Health plans had argued that because the group didn't have a contract with them, state law required them to handle the case out of court.

But the Supreme Court rightly said the doctors are a third-party beneficiary, because they provided care to the plans' members, and therefore have legal standing to sue. The case thus returns to its original home, Broward County. There, doctors say they will seek class-action status, which then would cover every out-of-network doctor fighting plans to adhere to prompt-pay statutes.

The other two cases -- Merkle v. Health Options, in the 4th District Florida Court of Appeal, and Adventist Health System/Sunbelt Inc. v. Blue Cross and Blue Shield of Florida, decided in the appellate court's 5th District -- allow a physician and a hospital system to sue over the amount health plans pay.

In each case, the plans paid 120% of Medicare, which the physician and hospital said were less than the "usual and customary" charges paid in their area for their services. Under Florida's emergency services law, health plans must pay the lesser of the health care professional's charges, the usual and customary charges for similar services in the community, or a prenegotiated rate agreed upon within 60 days of the claim being filed. The AMA joined multiple medical societies in filing friend-of-the-court briefs.

Both the Merkle and Adventist cases were ordered returned to their county courts of origin. But plans have talked about appealing the cases to the state Supreme Court, based on their interpretation that such disputes must be handled privately or through the state's insurance department. In either case, a court has not ruled on whether a plan actually has violated a statute.

Still, it is heartening to see courts begin to recognize that when physicians have a responsibility to care for patients in emergency situations, health plans can be held meaningfully accountable for their share of the costs.

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