Health Care Counsel

Arent Fox's health care law blog offers news, analysis, and insights for the health care industry.

Health Care Counsel

Payer Disputes & Reimbursement

Arent Fox draws experience from its leading Health Care and Litigation practice groups to provide both a deep and broad understanding of the industry and the specialized know-how to get payer disputes and reimbursement issues resolved.

Our substantive experience runs the gamut from ERISA, COBRA, FEHB, HIPAA, ACA, state insurance laws, Medicare Advantage, and the MSP Act, to federal and state health care regulatory law. Our group also boasts a roster of talented litigators whose strategic capabilities enable us to steer matters through all forums of dispute resolution in order to successfully achieve our clients’ goals. Our team of seasoned lawyers is complemented by non-lawyer specialists with billing, coding, and coverage skills. Additionally, our proprietary case management system developed specifically for this practice allows us to funnel and track large case volumes with efficiency, while providing the highest level of client service and attention to detail.

A large portion of our work in this area involves the representation of health care providers in disputes with commercial payers, where we have recovered millions of dollars for our clients. The matters we regularly handle include out-of-network reimbursement disputes, managed care contracting disputes, federal preemption issues, coverage disputes, coordination of benefits issues, network and preferred provider disputes, single patient agreement breaches, repricer challenges, “usual, customary, and reasonable” calculations, and recoupment demands.

We routinely handle administrative claims and appeals under ERISA, as well as through the Office of Personnel Management. In court, we pursue both state law provider claims and ERISA assignee-based claims. We recently prevailed in a case for one of our clients in which we asserted ERISA claims for fiduciary breaches and benefits, and ultimately obtained reimbursement at nearly 100% of billed charges, plus an award of attorneys’ fees.

Other engagements on behalf of health care providers have included:

  • ERISA administrative claims and appeals challenging benefit denials.
  • Pursuing OPM and FOIA claims with respect to FEHB Plan disputes.
  • Negotiating with plan sponsors with respect to alleged illegal plan terms.
  • Enforcing commercial insurer contractual compliance with preferred provider network arrangements and treatment agreements.
  • Challenging audit findings, overpayment demands, and recoupment actions issued by third-party administrators, insurers, and health plans.
  • Representing providers in disputes with large insurers, including terminations of provider agreements.
  • Challenging plan fiduciaries for failure to follow proper claims and appeals procedures.
  • Counseling providers on out-of-network “usual, customary, and reasonable” ERISA class action litigation.
  • Drafting and providing counseling with respect to insurance verification, intake, and assignment of benefits documentation.
  • Challenging commercial payers who violate the MSP Act and other coordination of benefits rules.
  • Representing out-of-network providers in reimbursement disputes with self-insured and insured health plans.

Our attorneys also regularly advise our clients on a vast array of areas that impact managed care relationships. We provide guidance on benefit plan interpretation and requirements, and assist clients in negotiating issues such as withhold pools, filing grievances regarding “slow pay,” “down-coding,” and other allegations against commercial payers with state insurance departments, and developing shared risk agreements with physician-hospital organizations and others.

In addition, our Health Care attorneys regularly guide clients through issues related to overpayments by Medicare, Medicaid, and other government payers. These issues can take many forms, including responding to audits and inquiries by the Office of Inspector General (OIG) or any of a number of government contractors tasked with identifying and recovering funds paid to providers. For providers and suppliers, the acronyms can be disorienting: Recovery Audit Contractors (RACs), Zone Program Integrity Contractors (ZPICs), Medicare Administrative Contracts (MACs), Medicaid Integrity Contractors (MICs), Medicaid Fraud Control Units (MFCU). Arent Fox attorneys can bring some clarity to the regulatory alphabet soup, assisting clients with responding to audit requests and inquiries and, where appropriate, and challenging overpayment determinations through administrative appeals.

Following enactment of the Patient Protection and Affordable Care Act (PPACA), providers now have an affirmative obligation to self-report and repay Medicare and Medicaid overpayments within 60 days of identifying an overpayment. Arent Fox attorneys frequently assist clients in determining when a compliance failure creates overpayment liability, assessing the scope of potential overpayment liability and making disclosures to the appropriate government entity.


It’s About Time: Medicare Providers, Suppliers, and CLIA Laboratories No Longer Required to Write Plan of Correction on Right Side of Form 2567

In a move that practically all Medicare providers, suppliers, and Clinical Laboratory Improvement Amendments laboratories will welcome, the Centers for Medicare & Medicaid Services has declared that Plans of Correction and Allegations of Compliance no longer must be input directly onto the Statement of Deficiencies form (also known as “Form 2567”).


Supreme Court Unlikely to Adopt Automatic-Dismissal Rule for Violations of False Claims Act’s Seal Requirement

On November 1, 2016, the Supreme Court heard argument in State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, a False Claims Act case in which the defendant sought dismissal of a qui tam action after the whistleblower violated the FCA’s seal requirement, 31 U.S.C. § 3730(b)(2), and publicly disclosed the complaint. See the oral-argument transcript here.


Mylan Agrees to $465 Million Settlement with DOJ Over EpiPen Medicaid Drug Rebate Reporting Classification


Goodbye and Good Riddance: CMS Proposes to Eliminate 2-Midnight Policy Payment Reduction

On April 27, 2016, the Centers for Medicare & Medicaid Services published a proposed rule that, among other things, would eliminate the 0.2 percent inpatient payment reduction resulting from the “2-Midnight Rule." CMS estimates that eliminating the payment reduction would yield an additional $539 million in reimbursements in Fiscal Year 2017, a significant benefit for hospitals.


CMS’s Long-Awaited Final 60-Day Repayment Rule Provides Guidance and Eases Some Requirements for Health Care Providers and Suppliers

On Friday, February 12, 2016, the Centers for Medicare and Medicaid Services (CMS) released the long-awaited Final Rule and regulations,[1] providing much needed guidance to providers and suppliers on how to meet the Affordable Care Act’s (ACA’s) 60-day overpayment mandate.[2] Specifically, a provision enacted as part of the ACA in 2010 requires that all Medicare and Medicaid overp


Medical Providers: How NOT to State an ERISA Claim

  • The 7th Circuit just denied ERISA rights to medical providers, but this doesn’t have to be the result.

Supreme Court Blocks Path for Health Care Providers Seeking Additional Medicaid Funding

On March 31, 2015, the Supreme Court of the United States issued a 5-4 decision in the case of Armstrong v. Exceptional Child Center, Inc., 575 U.S. __ (2015), holding that health care providers do not have the right to sue a state Medicaid program under Section 30(A) of the federal Medicaid Act (Section 30(A)) for injunctive relief.


Report Suggests CMS Should Modify Requirements for Claims Repayment

In a March 19, 2015 report commissioned by the American Orthotic & Prosthetic Association (AOPA), a health care consulting firm found that the Center for Medicare & Medicaid Services (CMS) could save $12 million over 10 years by not requiring providers to repay disputed Part B claims to Medicare until after the Administrative Law Judge hearing and determination. This change in policy also could make a tremendous difference to provider operations since it would allow them to have access to certain funds during the very lengthy period while they wait for the ALJ determination.


Cutting Class: California Health Provider Overcomes Class Action Treatment of Patient Billing Claims

In a decision that is good news for California hospitals, the California Court of Appeal invalidated class certification when a San Diego-based hospital system proved that the only way to determine the members of an uninsured patient class was to review more than 120,000 patient records. In Hale v. Sharp Healthcare, the California Court of Appeal, Fourth Appellate District affirmed the trial court’s order decertifying a class of uninsured patients claiming unfair billing practices.


Last Chance: New Way for Hospitals to Participate in the CMS Settlement Offer for Inpatient Claims

In an effort to encourage hospitals to take advantage of the 68 percent settlement offer for previously denied inpatient claims, [1] the Centers for Medicare and Medicaid Services (CMS) recently announced a new procedure. Hospitals that are unable to produce the required list of claims eligible for settlement by October 31, 2014 (this Friday), may instead submit a request to CMS for a list of potentially eligible claims (a “potentials list”).


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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.