2010 supplemental update to: the changing managed care landscape: an update for providers

1. 2010 SUPPLEMENTAL UPDATE TO:THE CHANGING MANAGED CARE LANDSCAPE: AN UPDATE FOR PROVIDERS Zumpano Patricios & Winker, P.A. Joseph I. Zumpano, Esq. Lori C. Desnick, Esq. Martha M. Esperon, Esq.

2. I. Update on Non-Participating Provider Issues 2

3. 1. Update on Disputes Regarding Charges and Reimbursement 3

4. §641.513(5), Florida Statute §641.513(5), Florida Statute, states in pertinent part that: Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of: (a) The provider’s charges; (b) The usual and customary provider charges for similar services in the community where the services were provided; (c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim. 4

5. Update on Florida Court Cases involving UCR and other payment issues Adventist Health System/ Sunbelt, Inc., a/k/a Florida Hospital v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 04-CA-3122 Adventist Health System/ Sunbelt, Inc., a/k/a Florida Hospital v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 2008-CA-011145-O North Brevard County Hospital District, d/b/a Parrish Medical Center v. Health Options, Inc., case no. 05-2007-CA-006323 Baker County Medical Services, d/b/a Ed Fraser Memorial Hospital v. Aetna Health Management, LLC and Humana medical Plan, Inc., case no. 02-2006-CA-0061 5

6. Update on Florida Court Cases involving UCR and other payment issues Adventist Health System/ Sunbelt, Inc., a/k/a Florida Hospital v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 04-CA-3122: During the last presentation, the case was in the summary judgment phase. In April 2009 the Court heard oral arguments on Plaintiff and Defendants’ Motions for Partial Summary Judgment. In June 2009, the Court denied both parties Motions for Partial Summary Judgment. In July 2009, the Plaintiff filed an Amended Complaint incorporating damages. This case and the 2008 case were consolidated for discovery purposes (2004 and 2008). The case is currently in the discovery phase. In September 2009, the Defendants filed a second Motion for Partial Summary Judgment with regard to all claims for inpatient admissions The case is scheduled for trial by jury during the trial period beginning September 27, 2010. 6

7. Update on Florida Court Cases involving UCR and other payment issues (cont’d) Adventist Health System/ Sunbelt, Inc., a/k/a Florida Hospital v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 2008-CA-011145-O During the last presentation, the Defendants had filed a Notice of Removal to Federal Court. Florida Hospital filed a Motion for Remand which was granted by the United States District Court for the Middle District of Florida, which held that the Plaintiff’s claims were not preempted by ERISA or the Medicare Act. In May 2009, the Defendants answered the Plaintiff’s Complaint. This case was consolidated with the 2004 case for purposes of discovery. The case is currently in the discovery phase. In September 2009, the Defendants filed a second Motion for Partial Summary Judgment with regard to all claims for inpatient admissions. 7

8. Update on Florida Court Cases involving UCR and other payment issues (cont’d) North Brevard County Hospital District, d/b/a Parrish Medical Center v. Health Options, Inc., case no. 05-2007-CA-006323 This case is currently in the discovery phase. The case is scheduled for trial in December 2009. In September 2009, Defendant filed Motion for Summary Judgment with regard to all claims for inpatient admissions. 8

9. Update on Florida Court Cases involving UCR and other payment issues (cont’d) Baker County Medical Services, d/b/a Ed Fraser Memorial Hospital v. Aetna Health Management, LLC and Humana medical Plan, Inc., case no. 02-2006-CA-0061 During the last presentation, the Plaintiff had appealed the 8th Circuit’s final judgment, and the parties had filed their briefs and were awaiting oral arguments. Oral arguments took place in January 2009 before the 1st District Court of Appeal. The parties are awaiting a ruling. 9

10. Ingenix New York Florida Davekos Case AMA vs. United Update on Landmark Cases 10

11. Ingenix, Inc. Ingenix is a wholly-owned subsidiary of UnitedHealth Group Incorporated. Ingenix databases were used by insurers to determine reimbursement rates for out-of-network providers. NY AG alleged that Ingenix intentional skewed “usual and customary” rates downward through faulty data collection, poor pooling procedures, and the lack of audits. NY AG alleged that health insurers that contributed data to the Ingenix databases had a financial incentive to manipulate the data they provided so that the pooled data would skew reimbursement downward. NY AG alleged that health insurers did not explain to patients, the consumers, how they arrived at the rates and failed to disclose their conflicts of interest. 11

12. Ingenix: New York 12

13. NY Attorney General Andrew M. Cuomo Closes the Door on Ingenix: Announced Settlements with 13 Health Insurers as Follows: January 13, 2009:  UnitedHealth Group, Inc. United to discontinue the controverted databases. United to pay $50 million to establish a new independent database. January 15, 2009: Aetna, Inc. Aetna to pay $20 million toward a new independent database. February 2, 2009: Aetna, Inc. (Aetna Student Health Plans) AG alleged that Aetna relied on schedules from the Ingenix databases and intentionally used years old data to determine out-of-network reimbursement rates for students. Aetna to pay an estimated $5.1 million to students, or their doctors, as applicable, in additional reimbursements, plus applicable interest and penalties. 13

14. NY Attorney General Andrew M. Cuomo Closes the Door on Ingenix: Settlements with 13 Health Insurers (cont’d) February 4, 2009:  MVP Health Care, Inc. MVP to pay $535,000 to help fund the new independent database. February 10, 2009:  Independent Health Association, Inc. Independent to pay $475,000 to help fund the new independent database. February 10, 2009:  HealthNow New York, Inc. d/b/a BlueCross BlueShield of Western New York and BlueShield of Northeastern New York. HealthNow to pay $212,500 to help fund the new independent database. HealthNow also signed an agreement with the NY Attorney General to adopt the Attorney General’s Doctor Ranking Model Code. 14

15. NY Attorney General Andrew M. Cuomo Closes the Door on Ingenix: Announces Settlements with 13 Health Insurers (cont’d) February 17, 2009:  CIGNA Corporation CIGNA to pay $10 million to help fund a new independent database. February 18, 2009: WellPoint, Inc. WellPoint to pay $10 million to help fund the new independent database. March 3, 2009: The Guardian Life Insurance Company of America Guardian to pay $500,000 to help fund the new independent database. 15

16. NY Attorney General Andrew M. Cuomo Closes the Door on Ingenix: Announces Settlements with 13 Health Insurers (cont’d) March 5, 2009: Excellus Health Plan, Inc. Excellus to pay $775,000 to help fund the new independent database. March 5, 2009: Capital District Physicians’ Health Plan, Inc. CDPHP to pay $300,000 to help fund the new independent database. March 10, 2009: Group Health Incorporated and HIP Health Plan of New York GHI/HIP to pay $1.5 million to help fund the new independent database. June 18, 2009: Health Net, Inc. Health Net to pay $1.6 million to help fund the new independent database. Additionally, applicable insurers shall, within 60 days of notification from the N.Y. Office of the Attorney General (OAG) that the new independent database is available: cease using Ingenix databases to determine reimbursement rates, irrespective of any disclaimer by Ingenix; use the new independent database in determining reimbursement rates for five years, unless excused by the OAG, and the insurer will not be required to pay a fee for use of the new independent database for determining reimbursement rates during the five year period; and not own, operate, or fund any other database product that provides data pooled from more than one insurer to other health insurers for determining reimbursement rates. 16

17. Ingenix: Florida 17

18. First Shots Fired in Florida In a letter dated July 28, 2009, Sean Michael Shaw, Insurance Consumer Advocate, to Florida Insurance Commissioner Kevin McCarty, Mr. Shaw requested that: The OIR “investigate the nature and extent of the use of the Ingenix databases by health insurance companies in Florida.” If an investigation reveals that Ingenix has been used by insurers in Florida, then letter posits that the OIR should: Recommend solutions for halting this practice Secure restitution for Florida consumers who were underpaid by their health insurers. In a letter dated July 30, 2009 from Insurance Commissioner Kevin McCarty to Consumer Advocate Sean Shaw, Mr. McCarty confirmed that the OIR is investigating the use of the Ingenix databases by health insurers. 18

19. Michael Davekos, a chiropractor, sued Liberty Mutual Insurance Company to recover personal injury protection payments for medical treatment provided to an individual who sustained injuries in a car accident while riding as a passenger in a car insured by Liberty. The appellate court vacated judgment for Liberty and remanded for a new trial finding that that the Ingenix data, graphs and summaries were not admissible and that the “Ingenix raw data itself...lacks the requisite indicia of reliability to be admissible.” Plaintiff, Michael Davekos, P.C., filed a Motion to Voluntarily Dismiss Case and a Judgment of Dismissal was entered on November 14, 2008. Michael Davekos, P.C. v. Liberty Mut. Ins. Co.2008 Mass. App. Div. LEXIS 12 (Jan. 24, 2008) 19

20. AMA v. United Healthcare Corp. (S.D.N.Y. May 7, 2009) Plaintiffs (members of certain health plans, out-of-network providers, and medical associations) filed lawsuits (later consolidated) against several Defendants including, among others, United Healthcare Insurance Company, United Healthcare Corporation, and Ingenix, Inc., challenging the Defendants’ practices in relation to decisions involving the UCR rates paid by Defendants for out-of-network medical services in connection with certain health care plans. The Court dismissed Plaintiffs’ ERISA claims and some of Plaintiffs’ RICO claims. The Court allowed Plaintiffs’ antitrust claims and certain RICO claims. On January 14, 2009, settlement agreement executed with several plaintiffs in the AMA lawsuit, including three medical societies. Per settlement, plaintiff class to receive $350 million. Settlement submitted to the court for approval, but some members of the plaintiff class have objected to it as inadequate.  The court held a preliminary approval hearing and the parties are still awaiting the court’s decision.  20

21. 2. New Florida Legislation Closes Door on Assignment Games 21

22. Amended Subsection 627.638(2), F.S., to require insurers to make payments directly to any provider not under contract with the insurer if the insured makes a written assignment of benefits.  New law expands right to assignment to any “person who provided the services in accordance with the provisions of the policy” not just hospitals, licensed ambulance providers, physicians, and dentists. New law removes the insurer’s ability to opt out by having contract provisions that would prohibit the assignment of benefits. The amendment to Subsection 627.638(2), F.S., will be repealed on July 1, 2012, if the Office of Program Policy Analysis and Government Accountability finds that the amendment caused the TPA of the state group health plan to suffer a net loss of physicians from its preferred provider plan network and, as a direct result, caused an increase in costs to the state group health plan. 22

23. II. Update on Reducing or Waiving Patient Responsibility 23

24. Update on Reducing or Waiving Patient Responsibility False Claims Act and Anti-Kickback Statute Case OIG Advisory Opinion No. 09-12 OIG Advisory Opinion No. 09-03 24

25. U.S. ex rel. Sharp v. Eastern Okla. Orthopedic Center, 2009 U.S. Dist. LEXIS 15988 (Feb. 27, 2009) Relator filed a qui tam action against her former employer, an orthopedic center, where she had worked as a Front Desk Supervisor. Relator alleged, among others, that the orthopedic center waived Medicare co-insurance and/or deductibles for certain patients resulting in: (a) claims containing misstated amounts actually charged to the Medicare patient; and (b) violations of the federal Anti-Kickback Statute. Relator identified six (6) instances involving the same patient by date of visit, doctor seen, Medicare claim number, the amount claimed, and the amount allegedly waived as well as twelve (12) other Medicare patients whose accounts were “administratively written off” or “courtesy adjusted” on a particular date. 25

26. U.S. ex rel. Sharp v. Eastern Okla. Orthopedic Center, 2009 U.S. Dist. LEXIS 15988 (Feb. 27, 2009), cont. Two Theories: The practice directly violated the FCA because the orthopedic center intentionally overstated the amount a patient was charged for the visit. The practice violated the federal Anti-Kickback Statute that resulted in a violation of the FCA based on a false certification theory. 26

27. U.S. ex rel. Sharp v. Eastern Okla. Orthopedic Center, 2009 U.S. Dist. LEXIS 15988 (Feb. 27, 2009), cont. First Theory: Violation of FCA Court dismissed the allegations involving the twelve (12) patients because the Relator failed to plead with particularity. The Relator merely identified the patients and stated that their accounts had been “administratively written off” or “courtesy adjusted” on a particular date. Court upheld Relator’s allegation involving the one patient as sufficient to state a claim for a violation of the FCA and found that the waiver of coinsurance for one patient for every visit between July 28, 2003 and February 9, 2004 was routine. The court rejected the orthopedic center’s argument that a routine practice must involve more than one patient. 27

28. U.S. ex rel. Sharp v. Eastern Okla. Orthopedic Center, 2009 U.S. Dist. LEXIS 15988 (Feb. 27, 2009), cont. Second Theory: Violation of FCA via Violation of Federal Anti-Kickback Statute Based on False Certification Court held that the Relator’s allegations failed as a matter of law because they lacked the necessary element of purpose (i.e., at least one purpose was to induce certain patients to give them their business). Relator failed to allege that the orthopedic center provided the waiver for the purpose of inducing the patient to purchase services. Instead, the Relator only alleged that the orthopedic center provided the waiver as a special benefit to its employees and their family members, who were already existing patients. 28

29. OIG Advisory Opinion No. 09-12 Requestor is a political subdivision that functions as the planning agency for alcohol, drug addiction and mental health services. Services are provided by mental health centers that contract with the Requestor. Under the proposed arrangement, if a patient is eligible for Medicare Part D, the mental health center would make an additional determination as to whether the individual is eligible, on the basis of financial need, for a Part D copayment subsidy from the Requestor. OIG determined that the remuneration is not likely to influence the beneficiary to chose any particular provider, practitioner, or supplier because: The Requestor’s copayment subsidy would not be advertised and the beneficiary would be screened for eligibility at the mental health center and informed of such eligibility by the center. At this point, the beneficiary already choose the center as his/her provider. Due to low number of residents (5,000) served by the Requestor, the OIR found that word-of mouth transmission about the subsidy was also unlikely to influence a beneficiary’s choice of a mental health provider. Although the clinic may assist the beneficiary in enrolling in a Part D plan, the subsidy to be provided is not contingent upon the selection of any particular Part D plan. Payment of the copayment subsidy is not contingent upon the use of any particular pharmacy. 29

30. OIG Advisory Opinion No. 09-03 Three municipalities waived otherwise applicable cost-sharing obligations of individuals residing within each other’s borders when providing backup EMS transportation to such individuals. The OIG concluded that: (1) the proposed arrangement would not constitute grounds for sanctions under the civil monetary penalties law; and (2) although the proposed arrangement may implicate the federal anti-kickback statue, the risk of prohibited remuneration is minimal for, among others, the following reasons: The Proposed Arrangement did not involve the routine waiver of cost-sharing obligations because the Requestors provided the backup EMS transportation on an unscheduled and sporadic basis. Because the Proposed Arrangement did not involve the provision of routine, non-emergency transportation services, but instead was limited to backup EMS transportation, it did not increase the risk of overutilization and was unlikely to lead to increased costs to Federal health care programs. Because each Requestor waived cost-sharing obligations when it provided EMS transportation, there was no expectation on the part of the individuals receiving the backup EMS transportation that they would have cost-sharing obligations. Therefore, the Requestor’s waiver of such obligations for the isolated instances in which it provided the backup EMS transportation was unlikely to induce the use of those or any other services. The underlying nature of the Proposed Arrangement–including, but not limited to, the fact that the waivers were not routine, the Requestors are local governments engaged in a mutual aid arrangement for backup EMS transportation, and the individuals receiving the waiver are, for all intents and purposes, simply being treated the same as any other individual in the Requestors’ jurisdictions who receives EMS transportation – distinguishes it from arrangements in which a municipality requires a private company to bill “insurance only” as a condition of getting the municipality’s EMS transportation business, including Medicare business. 30

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32. Adventist Health System/ Sunbelt, Inc., v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 6:08-cv-1706-Orl-22KRS Procedural Posture: The Complaint for Adventist Health System/ Sunbelt, Inc., a/k/a Florida Hospital v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 2008-CA-011145-O, was originally filed in the Ninth Judicial Circuit Court of Florida on September 5, 2008. On October 6, 2008, the Defendants filed a Notice of Removal to Federal Court and a Motion to Dismiss where they alleged, among other things, that ERISA preempted the Plaintiff’s claims. In response, on November 3, 2008, the Plaintiff filed a Motion to Remand the case back to State court and a response to Defendants’ Motion to Dismiss. 32

33. U.S. District Court for the Middle District of Florida held: The Court used the Butero test, a four-part test commonly used by courts to determine ERISA complete preemption, in order to determine if the Plaintiff’s claims in this case were completely preempted by ERISA. When applying this test, all four factors must be met by the party claiming preemption in order for complete preemption to exist. On March 18, 2009, the Court entered an Order where it held that the Defendants did not carry their burden of proving that the Plaintiff, Adventist Health System, had standing to sue under ERISA (one of the factors of the Butero Test). Therefore, the Court granted the Motion for Remand finding that ERISA did not “completely preempt” the Plaintiff’s claims and remanded the case back to the Ninth Judicial Circuit Court; and denied as moot the Defendants’ Motion to Dismiss. Adventist Health System/ Sunbelt, Inc., v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc., case no. 6:08-cv-1706-Orl-22KRS 33

34. IV. Recent Developments in HMO Insolvencies 34

35. HMOs Are Feeling The Pinch Despite tough economy, no HMO insolvencies in 2009 yet. See http://www.fldfs.com/receiver/companyInfo/company_list.asp Despite upping enrollment, Florida HMOs in business for 3 years or more saw profits fall 3.7% in first quarter of 2009 Not as bad as 2008, which saw HMO profits fall almost 25% from the previous year See Enrollment up, profits down at Florida HMOs in the first quarter, Tampa Bay Business Journal, 8/21/09 35

36. There Are a Number of Weak HMOs in Florida theStreet.com (F/K/A Weiss Ratings), which ranks the financial health of HMOs across the country, counts 5 Florida HMOs in its listing of the 20 weakest HMOs in the country. Last year, the Weakest HMO list contained 3 Florida HMOs. For the second year in a row, no Florida HMO was listed in its Strongest HMO listing 36

37. HMO Insolvency Misconceptions It is important to note that HMO insolvency is not limited to new HMOs with a small number of enrollees. HMO Insolvency is a process rather than an event- while there may be a finite point of insolvency, the process occurs over time and there are usually a number of indicators. 37

38. MD Medicare Choice HMO Insolvency Last year, we talked about the insolvency of MD Medicare Choice which occurred on September 30, 2008. What lessons can be learned from this HMO, which served 16,000 senior citizens in the Tampa Bay area? 38

39. Addressing HMO Insolvency In last year’s presentation, we focused on three ways to address the risk posed by HMO insolvency: Having a full understanding of laws and regulations governing HMO solvency; Monitoring HMO fiscal health; and Utilizing contractual protections (such as Notice Provisions, Security Deposits and Letters of Credit). 39

40. MD Medicare Choice Case Studies In last year's presentation, we outlined the statutory schemata. All Enrollees moved to Humana and were allowed to keep current primary providers through end of 2008, whereupon they were able to choose whether to obtain their services from Humana providers or switch to another Medicare plan. Providers were required to submit itemized claims to the Florida Department of Financial Services. As of this writing, approximately a year later, many providers have still not been paid. 40

41. Typical Insolvency Timeline Revenues fall below expenses HMO responds by: drawing down reserves or borrowing delaying payments to providers; clamping down on utilization review; renegotiating / cancelling contracts State regulators become involved, either because of information contained on mandatory filings or as a result of provider or enrollee complaints about payment. 41

42. MD Medicare Choice Case Study Sometimes, all the warning signs are there. MD Medicare Choice was having trouble for a long time. It was required to submit corrective action plans during the previous two years. It is interesting to note that MD Medicare Choice was unrated by thestreet.com because of not supplying requested risk-based capital figures. Furthermore, MD Medicare Choice was under consent order with regulators immediately prior to insolvency. 42

43. The Bottom Line Upon liquidation, providers are way down the line The state is reimbursed for the costs of liquidation Employees of the HMO are paid Secured Creditors are paid Patients who are owed money by the HMO are reimbursed Providers are paid, if funds remain Joyce Hicks, Estate Management Specialist, Florida Division of Rehabilitation and Liquidation, confirmed that a full year later, many providers have not been paid. 43

44. V. Update to Third Party Access to the Managed Care Contract 44

45. Boca Raton Community Hospital, Inc. v. Great-West Healthcare of Florida f/k/a One Health Plan of Florida, Inc., 2008 U.S. Dist LESXI 20760 (March 17, 2008) On March 24, 1989, Private Health Care Systems, Inc. (“PHCS”) allegedly entered into a Preferred Hospital Agreement (the “Agreement”) with Boca Raton Community Hospital (“Hospital”). On April 15, 1989, Great-West Benefit Services, Inc., (“Great-West Benefit), allegedly agreed to participate in the Agreement via a signed consent acceptance form. On July 30, 1998, Great-West Benefit allegedly notified Hospital that One Health Plan of Florida, Inc., a/k/a Great-West Healthcare of Florida, Inc. (the “HMO”), would assume certain “non-material administrative services” under the Agreement. On July 30, 1998 and October 1, 1998, PHCS allegedly notified Great-West Benefit that due to the transition of business to the HMO, Great-West Benefit had no right to participate in management services or PPO services offered by PHCS. In addition, the HMO’s parent corporation, Great-West Benefit, allegedly voluntarily withdrew from the PHCS network in 1998. Great-West Benefit allegedly never notified Hospital that it lost its rights under the Agreement and continued to pay Hospital the discounted rates under the Agreement. 45

46. Boca Raton Community Hospital, Inc. v. Great-West Healthcare of Florida f/k/a One Health Plan of Florida, Inc., 2008 U.S. Dist LESXI 20760 (March 17, 2008) The Hospital sued the HMO for the difference between the Hospital’s “usual and customary charges” and the payments it received for services rendered to the HMO’s insureds between 1998 and May 2005. The Court entered a declaratory judgment in favor of the Hospital finding that , as a matter of law, based on the unambiguous language of the Agreement, once Great-West Benefit withdrew from the PHCS PPO network in 1998, neither Great-West Benefit or any of its affiliates were entitled to participate in and claim rate discounts as a “carrier or subsidiary” under the Agreement. Therefore, as of July 30, 1998, the HMO had no contractual right to participate under the Agreement either as a corporate affiliate or assignee of Great-West Benefit. The Court also found as a matter of law that the Hospital did not through its conduct ratify the HMO’s entitlement to participate in the Agreement by continuing to accept reduced payments at least up until the time the Hospital gained actual knowledge of Great-West Benefits’ withdrawal from the PHCS PPO network. At such time when the Hospital gained actual knowledge, the issue of ratification would be an issue for the trier of fact at trial. 46

47. VI. Update on Limited Benefit Plans in Florida 47

48. State Efforts to Promote Limited Benefit Plans in Florida In last year’s presentation, we spoke about Florida’s efforts to address its growing number of uninsureds by implementing the Cover Florida program. 48

49. Cover Florida Cover Florida had just been signed into law by Gov. Crist a few months before last year’s presentation. In looking at what to expect from Cover Florida last year, we examined a previous Limited Benefit Plan enacted in Florida. Known as “Health Flex”, it had a very low take-up rate. 49

50. Reasons For Low Enrollment “Initial premium quotes were higher than expected, possibly because insurers must cover all applicants regardless of health status with the exception of Cover Florida, insurers may deny individual health insurance applicants if they have past or current health problems.”  See State Policies to Encourage High Deductible and Limited Benefit Health Plans: Costs, Constituents and Concerns, Lynn Quincy, Mathematica Policy Research, Inc. (March 2009) 50

51. Unfortunately, History Appears to Have Repeated Itself The Cover Florida program has enrolled only 3,757 members to date (Florida Gov. Crist may leave a mixed legacy, Miami Herald, October 12, 2009). In fact, Florida’s number of uninsured has risen since last year to approximately 4 million individuals, with an estimated 77,250 Floridians losing coverage since March of this year. See “Gov. Crist touts Cover Florida health care plan as 'national model‘ despite failings" Miami Herald, August 9, 2009 51