Payment for Non-covered services is getting tougher. Are you up to speed?

Getting paid for services and treatments (elective, cosmetic, experimental, investigational, or even medically necessary) is complicated to say the least. Many physicians have added hormonal balancing, stem cell treatments, anti-aging services, genetic marker testing, certain medications and biologicals, and other services within their domain of expertise to their practice service menu.

Insurers have the option to offer coverage for those services - or not, and if they assume the risk for the cost of claims for those services, they load that risk as a cost element when calculating utilization incidence frequency and the negotiated fees they've contracted with providers. But recently, some of the big name payers have added rules and policies concerning pricing of non-covered services into their contracts and their provider manuals.

That's not fair because if the insured did not pay premium for the coverage of a service, the non-covered fees charged by the physician should be a private matter between seller and customer. But it isn't. Not anymore.

• Were you aware of the changes (most occurred in 2018)?
• Did you notice how surreptitiously these changes were implemented?
• Are you up to speed?

Providers are being fed outdated advice

Recent articles and blogs published in physician online newsletters demonstrate to me that the authors of the articles (some are lay journalists covering a beat, others are physicians who have agreed to write articles from their perspectives) are not up to speed and as a result, are now disseminating incorrect advice. Perhaps they are not up to speed either.

Surreptitious plan changes without amendment to existing contracts

Plans skillfully negotiated tacit approval in advance from physicians who signed contracts over the past 15 years. The tacit advance approval was in the form of one sentence: Something to the effect that the provider shall abide by and comply with "whatever" is published in the provider manual, which can be changed in the sole and absolute discretion of the plan. Once these "sleeper clauses" were embedded in the majority of U.S. managed care payer agreements, they changed the policies in the provider manual - not in the contract.

By approaching the matter this way, no amendments (and their associated costs and negotiation and implementation delays) are required. They simply add, by fiat, the change and the effective date. So that's exactly what they did.

Effective in 2018, UnitedHealthcare made sweeping changes that included mention of:

(Taken directly from the provider manual, verbatim)

Additional Fees for Covered Services

Do not charge additional fees for:

• Covered services beyond their copayments, coinsurance, or deductible
• Concierge/boutique practice fees
• Retainers, membership, or administrative fees
• Denied services/claims because you failed to follow our protocols and/or reimbursement policies
• Reductions applied to services/claims resulting from our protocols and/or reimbursement policies

Charging Members for Non-Covered Services

You may collect payment from our commercial members for services not covered under their benefit plan, if you first get the member’s written consent. The member must sign and date the consent before the service is done. Keep a copy of this in the member’s medical record. If you know or have reason to suspect the member’s benefits do not cover the service, the consent must include:

• An estimate of the charges for that service;
• A statement of reason for your belief the service may not be covered; and
• When we determine the planned services are not covered services, a statement that we have determined the service is not covered and that the member knows our determination, and agrees to be responsible for those charges.

Submit an advance notification request for a pre-service organization determination on UHCprovider.com/paan.

You should know or have reason to suspect that a service or item may not be covered if:

• We have provided notice through an article on UHCprovider.com including clinical protocols, and/or medical policies; or
• We have made a determination that the planned service or item is not covered and have communicated that determination.
• For MA benefit plans, CMS has published information to help you determine if the service or the item is covered. You are required to review the Medicare Coverage Center. If you do not follow this protocol, you cannot bill our member.

If you followed this protocol and requested a pre-service organization determination and an IDN was issued before the non-covered service was rendered, you must include the –GA modifier on your claim for the non-covered service. Including the –GA modifier on your claim helps ensure your claim for the non-covered service is appropriately adjudicated as member liability.

Do not bill the member for non-covered services in cases where you do not follow this protocol. If you don’t follow the terms of this protocol (such as requesting a pre-service organization determination for a MA member or rendering the service to a MA member before we issue the preservice organization determination), you may receive an administrative claim denial. You cannot bill the member for administratively denied claims.

Balance Billing

You cannot bill members for covered services beyond their normal cost sharing amounts (copayment, deductible, or coinsurance).

You cannot:

• Bill,
• Charge,
• Collect a deposit,
• Seek compensation,
• Seek remuneration,
• Seek reimbursement, or
• Have recourse against our members, or their representative, or the MA organization.

You must either:

1. Accept payment made by or on behalf of us as payment in full; or
2. Bill the appropriate state source for such cost-sharing amount.

So there you have it. You must now request the denial decision in advance of treatment for something that nobody paid a premium for, and for labor and documentation and treatment delay and risk lost opportunities. This is extremely intrusive and unfair.

What's your alternative?

1. To refrain from providing non-covered services to plan members or,
2. To quit the contract and become out-of-network providers.

There used to be a third option, to create or work for a non-covered entity. But they eliminated that as well. Now, no matter which TAX ID you are working under when providing services to one of their members, the contract rules contained within the provider manual apply universally. And you've already agreed. So you have no basis of a compliant. At least that's what most physicians will assume when presented this "mess."

There are ways to combat unfair business practices and latent issues, but they aren't easy (or inexpensive) to defend or overturn. and UnitedHealthcare isn't the only payer who has implemented such changes. All of the big ones have done it. But if you don't have your contracts and you don't have access to the provider manuals currently in force, you are not up to speed and at risk for allegations and actions against you for breach of contract.

1. More than 10 years ago, many contracts started to embed a "Thou shalt not join class action suits" to the dispute resolution section. If you don't know where your contract is, or you don't have all the pages handy within reach, you can't even go look for the statement I've just highlighted. Did you allow this sentence to remain during negotiation? If so, why? Does your attorney know you did that? That was a really silly thing to do. Perhaps you read it and didn't understand the future risk of consequences associated with that little sentence. Did you ask anyone for help? Or did you do this all by yourself? So know you'll have to play David against Health Plan Goliath, all by yourself. Looking back, would it have been worth it to have hired someone who could have spotted this risk exposure and neutralized it? Ok, what's done is done. Now what?

Oh and one more thing to consider: For the first time in 15 years, Federal Rule of Civil Procedure 23, which governs class actions, has been amended. The changes took effect December 1, 2018. What do the changes mean for healthcare organizations like yours? How are the new amendments likely to impact federal class action litigation? And what do you (and your attorney) need to know about the new requirements?

1. Do you know your costs? What is the economic impact of these unfair business practices? What are you at risk to lose if you don't follow the steps above? Can the plans perform a "clawback" or "retroactive chargeback" or "offset" for the money they can find that you've charged for non-covered services? YES! Can they charge interest on the amount they claim is due? YES! Are they required to produce detailed proof of their claim(s) for the amount being charged back or offset? NOT NECESSARILY! Where's your contract? Is this adequately addressed or is it what is known as "white space" where there is no documented meeting of the minds or agreement or terms and conditions? If you don't know where your whole contract is, you can't know the answer to this. Don't assume that if they want money back they must prove their claim. If it doesn't say so... on what basis will you fight?
2. What's your public relations risk and reputation risk if they make this amount into a media circus? You've worked hard to build a favorable brand and public relations sentiment in the community. How will you defend your brand reputation and public opinion? How much will it cost you in time and money to defend your brand, your professional reputation and standing? Could this have been avoided with an external professional contract review at the time of negotiation? YES. Could a professional negotiator and analyst negotiated anti-disparagement terms in the agreement to prevent this particular exposure at the time the contract was being renewed or initially negotiated? YES! Did you ask for help? Or did you do this one all by yourself as well?

It isn't easy operating a contracted practice, hospital, ASC or other healthcare supplier organization these days. The contracts you sign no longer simply cover "Covered Services". These implications on operations, revenues, billing and collections staffing and training, business strategy, brand differentiation, marketing, and customer service all originate with the contracts you sign and the language contained within them, not just the prices and rates.

Steps to take towards improvement

1. READ THE DAMN CONTRACT and the provider manual! Don't skim it. Read it for context. If anything seems ambiguous request clarifications in writing and request the answers in writing. Don't ask for ANY changes in your request for clarifications. That comes later at the appropriate time in the negotiation phase. At this point you are seeking first to understand the terms presented for mutual agreement. Is it clear? Is it fair? Will it cost you to do any of the verbs? (shall provide, shall maintain, shall comply, etc.) If yes, how much? Is it worth it? How will these verbs and their associated activity-based costs be reimbursed or recovered? Can you even provide, maintain, comply etc., given your current workflows and operations and staffing? What are the consequences if you cannot or you refuse to change your operations to accommodate the requirements of the agreement?
2. Determine if a one or or less consultation would be worth your investment to at least have a heads up on contract negotiation and re-negotiation and its implication on future business strategies and services you plan to offer. Cost range: ($250-$600)
3. Determine if there's sufficient risk to warrant outsourcing a contract review to point out the risks you may not identify on your own. Cost range: ($1500-$4500).
4. Determine if you need help with the actual negotiation once you know the talking points and risk exposures and have been supplied alternative language to attempt to negotiate better terms. Cost range: (it varies depending on the games played by the payers - this is where they can attempt to outspend you and exhaust your budget and drag things out - or not, there's no way to tell in advance.) Set a budget with your consultant or sub-contracted negotiator. Ask the consultant/contractor what they know about the payer (locally) and if the budget is likely to be adequate to get the job done. Ask if they have any relationships with the payer that can be leveraged to move the process forward. Ask if there is any negative history. Your consultant should be able to tell you that much up front so that you can decide if you should attempt to negotiate on your own, or decline the contract with the payer, find a different negotiator, or decide to do without that contract. It helps if you have an economic impact statement or idea of what life will be like without that plan's members being steered to your practice or facility.

One alternative to doing this using a consultant is to send a trusted staffer whom you are comfortable investing training budget to attend my classes on contract analysis and negotiation. Search the Internet for Maria Todd + Analyzing and Negotiating Managed Care and the classes should appear in your search engine results. That way, you'll find classes I am offering to the public, or those that are hosted or sponsored by an association or other sponsor and where and when the courses will be offered as well as how to register.

The key takeaway from this article is this: Non-covered services are not as easy to render and get paid anymore. The landscape has changed and you may be at risk for non-payment or loss if you don't remain informed and govern your actions and strategic plans accordingly.