September 22, 2023 • 28 mins
We welcome Zach Rothenberg, a seasoned healthcare attorney from Nelson Hardiman Law Firm. Zach brings profound insights into the common pitfalls and challenges that treatment centers often face when dealing with payers. He provides enlightening advice on how to avoid clawbacks and losses of contracts and handle increasingly aggressive insurance companies.
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Episode Transcript
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Speaker 1 (00:00):
Welcome to Hatching Creativity.
This isn't just anotherbehavioral health podcast.
This is the place where thoughtleaders converge to talk about
real life challenges,breakthroughs and pivotal aha
moments.
Thanks for tuning in toHatching Creativity.
Today I speak with ZachRothenberg from Nelson Hardiman
Law Firm.
Zach is a behavioral healthcare attorney who focuses on
(00:24):
billing and employment law.
In today's episode, we speakabout common pitfalls treatment
centers fall into as it relatesto payers.
We also discuss common issueslike how to avoid clawbacks or
losses of contracts.
If you like what you hear,please like, share, subscribe
and tell all your friends aboutHatching Creativity.
(00:45):
Our guest today is ZachRothenberg from Nelson Hardiman
Law Firm.
Zach, would you like to give abrief introduction about
yourself?
Sure?
Speaker 2 (00:54):
Be happy to.
I am a health care lawyer at afirm called Nelson Hardiman.
We are 20 lawyers.
Our main office is in Westwood,right here in Los Angeles,
California.
We focus exclusively on thepractice of health care,
representing health careproviders from individual
practitioners all through someof the largest health care
(01:14):
systems in the country andeverything in between.
We have a particular focus inbehavioral health and in SUD
treatment in particular.
I would say, at least for me,it's probably.
I would say, two-thirds of thework that I do is in that
industry.
I've been practicing law forabout 20 years.
Graduated of Harvard Law School, spent a lot of time at big
(01:35):
firms and really big firms andthen a very small firm where I
litigated entertainment cases,realized those are not quite my
people.
The health care world, thetreatment world in particular, I
found are really my people, mycalling, and I feel like I'm
really at home in that world.
Speaker 1 (01:53):
That's great.
How did you get involved inbehavioral health care world?
Speaker 2 (01:58):
You know, it really wasn't something that I
necessarily saw out.
I kind of just happened into itas I was making this transition
from entertainment to healthcare.
I just started doing, almost byhappenstance, some work for
some treatment providers and Ijust really was intrigued by it.
I think, more than anything, itfelt to me like a purpose, like
(02:21):
a mission, a really underfunded, undervalued enterprise
that was helping more and morepeople every year.
The need was growing every year.
To me still, if you ask theordinary person on the street
what they think about thisindustry, it still has this real
stigma and kind of a black mark.
It's a shady industry.
People are taking advantage offolks.
(02:43):
I see that To me it turns into.
These are the people I need todefend and represent and kind of
clear their name into thefuture, because it's just such a
valuable, valuable service.
Speaker 1 (02:58):
You know, what's real interesting to Zach is that if
you look at the people workingin the behavioral health care
field, you're going to be hardpressed to find somebody who's
not extremely passionate aboutwhat they do.
People in this field see a senseof purpose here, and that's one
(03:19):
of the things I love about it.
That's something that youidentified here too.
Unfortunately, though,oftentimes they're not
professional business people andthey have another mission or
another reason why they're inthis field.
Because of that, it exposesthem to a lot of risk.
So finding a law firm andattorneys that are in your same
(03:44):
mindset and understand that thismay be where the providers are
coming from, I think that couldbe really valuable, which is
part of the reason that Ibrought you on today, because
there's a lot going on in theworld of payer and payer
relations, what people aregetting paid, and there's a lot
(04:06):
of topics going on right now inthat area, and I'm curious from
a legal standpoint and the workthat you do.
Can you tell me some of themost frequently, most frequent
things people stumble into andsome of the hottest areas right
(04:29):
now being discussed?
Speaker 2 (04:31):
Yeah.
So I'll give you two, andthey're sort of similar but they
raise different issues and theyboth are payer audits.
So I'm a little bit repeatingmyself here.
But the insurance companies, inmy view, are always looking for
opportunities.
They are a for-profit business.
They are the opposite of whatyou just described as what
(04:54):
drives the treatment folks.
They are purely motivated bythe bottom line.
I don't think anybody gets intoinsurance out of a feeling of
passion In any case.
So you couple that with a fewthings that the kind of bad
reputation that the treatmentindustry has based on, kind of
the bad acts of a few bad applesand bad publicity, this huge
(05:19):
surge in the need for behavioralhealthcare, the what I see as
kind of a lack of clarity or inoutcomes, outcome metrics, and
what you get when you combineall that together is the
insurance companies feeling likethey have the opportunity to be
extra aggressive in denyingclaims on the front end and, I
(05:41):
think, increasingly clawing backmoney on the back end.
So what I'm seeing isparticularly from SIGNA not to
name names is what I call pay toplay audits, where they send
out a request for records, for asampling of clients and
invariably come back with thislitany of what they call
(06:01):
problems or issues that, by theway, are generally related to
paperwork.
They're not related to patientcare, not related to quality of
care, they're generally notrelated to medical anesthesity,
anything like that.
They're paperwork.
You signed where you shouldhave initially, you initially
where you should have signed,and they say, as a result we
want our money back for whateverwe paid you on these claims.
(06:23):
And then they say number two wealso think it was systematic
what you were doing.
So not only do we want ourmoney back for those 20 patients
or whatever that were part ofthe sample, we want all the
money back that we've ever paidyou because we believe that
you've been.
This is representative of thefact that you've been doing this
all along and there's horriblemistakes that we've identified.
And then they say and thereforewe are flagging you and we're
(06:47):
gonna not pay you and that denyall of your claims going forward
until this is resolved.
So the upshot is you need towrite us a big fat check or else
you cannot treat our membersgoing forward and I've probably
handled two dozen of these overthe past year or two.
I mean, it's just everywhere.
I don't know what tips, but Ithink that's the biggest thing
(07:12):
that we're gonna have to do isto sign off to initiate these
audits.
I have a suspicion that it'sjust the number of dollars of
claims that are going to sign itas opposed to anything
substantive, but I don't know.
But it's really something thatcauses great stress financially,
emotionally and otherwise onthese providers, especially the
(07:33):
smaller ones who are getting hitwith clawbacks.
There are sometimes sevenfigures.
I'm sorry, this is along-winded answer.
I don't know if it's more thanyou intended.
Speaker 1 (07:40):
It's valuable Absolutely.
Speaker 2 (07:42):
Great.
The second one is courtesy ofOptum.
This is a little bit newer.
We're seeing these audits thatare focused exclusively on
collecting from patients, whichhas been a topic for a long time
whether, how and whetherproviders are required to
collect from their patients thepatient contributions so co-pays
(08:02):
, deductibles, things like that.
These new audits are sayingsend us all the records that
relate to your efforts tocollect from patients for a
sampling of Optum's members.
Then they respond and generallysay it looks like you are not
collecting or not makingsufficient effort to collect.
Therefore, we're not asking forany money back, but we are
(08:27):
going to deny your claims.
Going forward on the assumptionthat you are waiving patient
responsibility and we considerthat to be fraudulent, we're
going to deny your claims.
You have the opportunity,though, to appeal the denials
and with substantiatingdocumentation showing that
you've collected from thepatients.
Once you appeal with theserecords that shows you've
(08:50):
collected, then we'll pay youour share.
This, to me, is hugelyproblematic and groundbreaking
in a number of ways.
First of all, it's a reallysubstantial change from the past
, where we've had anunderstanding that providers
certainly can't systematicallywaive patients.
They can't tell patients look,come to us, we're out of network
(09:11):
, we're not going to charge youanything.
That has been a no-no for along time and you can't
advertise that.
You can't do it systematicallyacross the board.
However, there's been anunderstanding that, look, the
patient population frequently isnot in great financial
situation.
It may invariably be thatyou're not going to collect from
(09:32):
the patient, but you have totry.
You have to make a real effort.
There's old wives tale that youhave to send out three invoices
, which I think is a myth, butyou do have to make a good faith
effort.
But this is now saying this newaudit from Optimus saying you
actually are required to collectbefore Optim has to pay you
anything.
There's no law that says that.
(09:52):
There's no deadline in any lawby which you have to collect.
It's not realistic that everyprovider is going to collect
from every patient 100 percentevery time.
To me this is groundbreakingstuff.
It's pushing the envelopereally really far beyond what
the law requires.
Again, it's a new opportunityto deny claims.
(10:15):
Those are the two hot topicswe're seeing.
Speaker 1 (10:18):
Those are the two hot topic.
I'm never shocked at what theinsurance companies do at the
expense of their members.
At the same time, what I thinkwould also be really helpful,
zach, being that this is reallyyour area of expertise.
(10:39):
I'd like to walk it back alittle bit, root each of these
topics and discuss some ideasthat you can, or a provider can,
use to protect themselves inthese situations.
The first one, where you weretalking about specific
documentation and that it's doneto the T.
(10:59):
I think it's really importantthat people know and understand
their policies, what theirprograms are.
That is really important.
Then, of course, beingextremely detailed, don't have
Joe the janitor dealing withdocumentation.
(11:21):
It needs to be somebody who iscompletely undistracted and
focused solely on that as theirjob if you want to have things
done right.
That just seems low hangingfruit, but from your perspective
and from your experience, whatare the best tips that you can
give to protect yourself fromthis kind of punitive audits?
Speaker 2 (11:46):
The first one you hit right on the head, which is
just your documentation has tobe pristine, it has to be
perfect and complete.
I find that people have it intheir heads that kind of good
enough is good enough, and whatI tell people is that at the
first pass it may be right.
(12:07):
I mean, things go under theradar all the time.
These insurance companies aredealing with just a huge volume
of claims and stuff to look at,and so you might be right that
things go under the radar for awhile.
But the problem, though, is, assoon as there's an audit and
there inevitably is they'regonna take advantage of any
little opportunity you give them.
(12:29):
So it's critical that you haveto.
It's hard psychologicallybecause you have to have the
motivation within yourself tomaintain perfect paperwork
always, Because you're not gonnasee the benefits of it
necessarily for some time ormaybe ever, but it's very likely
that at some point you'll beaudited and you will be thankful
(12:51):
that you pushed yourself ashard as you did to be as careful
and complete with yourpaperwork as possible.
The other thing that comes up alot is how making sure you have
a real sense of clarity as towhat is being expected of you,
and it differs from payer topayer and it seems like it
(13:12):
differs from year to year withineach payer, and a lot of folks
think that they can kind of playdumb, that if push comes to
shove they'll just say well, Iguess I was confused.
I was looking at Optum and notSIGNA, or SIGNA and not Edna or
whatever it is.
Or I was looking at 2021'sinformation.
(13:32):
My bad, and that may get you outof a lawsuit.
It may make it not fraud thatyou made a mistake, but in an
audit or something like that,there's no intense requirement.
If you aren't following themost up-to-date current
(13:52):
requirements, they're not gonnapay for it, and if they've
already paid you for it, they'regonna get their money back or
they're gonna insist on theirmoney back.
So it is-.
Speaker 1 (14:01):
Some lessons are more expensive than others too.
I mean, this could be a veryexpensive lesson that you're
helping people prevent right now.
Speaker 2 (14:10):
So an example, just put one fine point on it.
An example that comes up everytime is the notion of what is
evidence-based versusnon-evidence-based therapy, and
a lot of the payers will say acertain percentage of your time,
the hours that are part of aday of IOP or whatever, need to
be quote unquote evidence-based,and no one none of my clients
(14:35):
at the start of this discussionknow what that means.
When they have a vague notion ofwhat evidence-based is and they
may actually have a really goodunderstanding of what may be an
MD, psychiatrist and have agreat educational background on
what is evidence-based or notthey don't know what each payer
means by evidence-based andunfortunately that's the
definition that matters.
So I would encourage people tonever be comfortable being even
(14:59):
10% unclear.
Pick up the phone, make a phonecall to the payer whoever your
representative is, your contactis, or maybe calling you, mike
or somebody who has a contact,or me and figuring out a way to
get the answer from each payeras to what it means to be
evidence-based what hours aregoing to count?
Because eventually it's gonnamatter and you need all of your
(15:22):
hours to count or else you'regonna get caught back.
Speaker 1 (15:28):
You know to your point here.
I have had so manyconversations with Renee about
this and people are afraid toreach out to their payers.
They're afraid to reach out totheir legislators, they're
afraid to reach out to theirstate or the Joint Commissioner,
whoever it is, because they'reafraid that that might run up
some kind of a red flag thatthey're asking these questions
(15:52):
At the same time.
Usually it's appreciated I knowfrom the auditors and from the
surveyors and from the statesand Joint Commission.
This is what they wanna do.
They want to give people goodinformation From the payer
perspective.
Is that what's encouraged toreach out to the payer and who
(16:16):
at Cigna or Optum or BCBS wouldsomebody be reaching out to to
get this information and toensure that they get the right
information?
Part two of that question ishow do they document the
conversation and what they weretold in the event that what they
were told may have been wrong?
Speaker 2 (16:38):
Yeah, both of those are good questions.
The first part is A tricky one.
I sometimes wonder what thepayer's motivation is.
Right, because on one hand youcan see at least in the SIU side
of it they have an incentivefor you to not bill correctly.
Speaker 1 (17:02):
Because they are a moneymaker.
Speaker 2 (17:03):
They're a profit center for the insurance company
.
They claw back bad claims, whatthey consider to be bad claims.
So if they fix the problem onthe front end, there's sort of
less low hanging fruit for themto collect on the back end.
So sometimes it is not.
I think that's probably thereason there's no 800 number
with operators standing by handsor all the professions Because
they don't necessarily want tomake it easy on you, but I do
(17:25):
think there are ways to forceanswers, and sometimes it takes.
In my experience it can takesending several letters and
making some kind of veiledthreats at litigation or
something before you're able toget a phone call or a Zoom with.
For me, it's usually a lawyerwho knows the answers to these
questions.
So it takes some pushing butwe're able to do it.
(17:47):
I wish it were easier and itseems to me if there was a
genuine interest in having thisall done the way they wanted it
to be done, it would be easier,but it's not always the case.
Speaker 1 (18:00):
And what about verifying the information that
you're given?
How do you make sure that, whensomebody tells you something
from one of the pairs, that theinformation is accurate, or how
do you at least document thatyou got that information from
them, should you end up having aclawback anyway?
Speaker 2 (18:18):
You sound like a guy who's worked with lawyers before
you should absolutely alwaysdocument these and ideally,
you're sending if you know theemail address or the heart
address of the person you'vebeen speaking with, you send
them some kind of confirmingletter.
That's what I do.
I'll send me a thanks for themeeting.
(18:40):
I just want to make sure that Iwas understanding.
Here's how I understand.
We should be doing X, y and Z,going forward, and you spell it
out, and you won't get aresponse.
But that's fine too, I guess.
Alternatively, you send a memoto the file or something like
that.
But yeah, you want to havesomething.
And, by the way, it's not justso that you can hold it up and
(19:00):
say see, I asked, this is whatyou told me, it's also so that
you don't forget.
So you have a record in yourfile of exactly what they said,
so that you do it right.
Speaker 1 (19:08):
I like that.
I think that those are a coupleof really good ideas and I
appreciate that One of thethings that we recommend very
regularly is chart auditing, too.
How often people don't audittheir charts or they just audit
their charts to keep the jointcommission off their back.
But really chart auditing is ahuge time saver, money saver,
(19:36):
risk reducer, as well as goodchart auditing is going to
improve your clinical skills andyour documentation skills.
But those are some things thatare really important to keep an
eye on for sure.
Speaker 2 (19:50):
It's a real mental reset.
Right People audit their chartshoping they don't find problems
.
You should almost hope you dofind problems, because then
you're fixing them right.
It's something to show for allthis hard work of auditing.
Don't be afraid to findmistakes.
It's better that you find themthan that you just ignore them.
Speaker 1 (20:06):
It's better that you find the mistakes than the
auditor comes in and finds ittoo.
So, with your second point,where you were talking about
patient responsibility, what areyour tips or what kind of
advice would you have onprotecting yourself from getting
into trouble relating tocollecting and documenting your
(20:29):
patient responsibilities?
Speaker 2 (20:30):
Yeah, again, it comes down to documentation and you
want to make a real effort.
The biggest point I can make isthat the notion that you can
send three invoices to the lastknown address is not a real
thing.
I don't know where that camefrom and why people think that's
gospel, but it's not.
(20:52):
It shouldn't be, because Ithink most of the time when
people do that it's just paperpushing.
They know that they're notreally trying to collect and
they genuinely do have anobligation to try to collect in
a real and meaningful way.
Again, there's nothing wrongwith sending invoices, but if
you know that that's not wherethe person lives anymore or you
(21:15):
know that they're just throwingthese things in the trash, you
got to do something different.
You have to really show thatyou are making the efforts of a
reasonable business person whois genuinely trying to collect
this money.
You don't have to go to theends of the earth if you know
someone is homeless or broke oryou don't know where they are.
There's no reason to spend afortune I don't know, spiling a
(21:39):
lawsuit or sending out aninvestigator to track them down
for a couple of hundred dollars.
That doesn't make any sense.
But you have to make whatappears to an objective
bystander to be a reallegitimate business decision and
make real legitimate businessefforts to try to collect.
That's number one.
A loophole is certainly not theword.
(22:05):
The one big sort of alternativeapproach that you can sometimes
take is I do think there is anopportunity to consider
financial hardship Because, asyou know, the patient population
obviously often is experiencingdifficult financial hardship.
And so I think there is anopportunity to again document
(22:32):
and evaluate the financialsituation of the client and
determine whether there is apossibility for hardship.
And we have all sorts ofpaperwork that we've developed
over the years and actually hadvetted by some of the major
payers to document hardship,sort of on a sliding scale based
on the federal povertyguidelines, to determine whether
(22:54):
and to what degree we canreduce the patient's financial
responsibility based on theirfinancial situation.
So that's another big factor.
Speaker 1 (23:03):
It's also important to mention, with what you're
talking about, that you have apolicy around this, that you
document.
What is our standard policyaround scholarshiping or
financial hardship?
Because if you don't have apolicy and you're just flying by
(23:24):
the seat of your pants withthose things, you're still at
risk.
Yes, even if you have anunderstanding of what you're
talking about and you have anunderstanding of poverty levels
and what someone's financialsituation means in their
specific location, you stillneed to document and have it
(23:48):
written in your policies,because you will be asked to
have your policies looked at too.
Speaker 2 (23:54):
And to follow those policies in a consistent manner.
You wanna do the same thingevery time and, by the way, not
just for the benefit of thepayers or whoever, but also so
that you're not showingfavoritism right?
There's a potential fordiscrimination here who you're
gonna give a hardship, a feereduction to, and who you're not
(24:15):
.
You wanna make sure that it isblind to everything except the
financial need.
Speaker 1 (24:20):
Well, that's a good point and it's also important to
mention anytime you weretalking policy that you are
documenting.
You're supporting documentation, you're supporting evidence
that you're actually followingyour policy right, because
anybody can say that they'redoing anything.
But you need to be able to backthat up and have your
(24:43):
information readily available toyou so that, one, you can audit
yourself, but two can beprepared when that inevitable
audit happens.
If you don't have it handy orif you're not ready with it at a
reasonable amount of time, itcould set off red flags that
you're just making it up.
(25:03):
So things to consider here.
What are your thoughts onsolutions like FinPay or one of
these kinds of softwarecompanies or financial backers
that helps with that payerresponsibility?
Have you had any experiencewith anything like that?
Speaker 2 (25:25):
To a degree, but I would say it's more so folks who
try to incorporate or integratethe collection process into the
admissions process.
Right, so that you are.
They say you should be talkingabout discharge planning from
day one.
You should also be talkingabout these financial issues
(25:47):
from day one and how you'regoing to collect.
You don't need to startcollecting on day one, but you
want to make your expectationsclear.
You want to explain what'sgoing to happen down the road
right away.
And so I know there arecompanies out there I've worked
with plenty of them who get inunder the hood and really get
into your processes so thatthey're involved from day one in
(26:12):
forming and settingexpectations, getting
information from clients, sothat on the back end your
collections will be smoother andmore effective and less jarring
.
I think a lot of the pushbackfrom providers on collecting
from patients is you don't wantto upset your clients, right?
They're in a difficultsituation as they are.
They're already vulnerable andthe client's always right.
(26:35):
You kind of have that mentalityright.
So I think these services canalso help set expectations so
that when you go to collectyou're not the bad guy, at least
in your own mind.
Speaker 1 (26:46):
Well, you take somebody who just got out of
treatment and all of a suddenthey've got this huge bill.
You know that's a very good wayto throw somebody into a
tailspin, which is not whatwe're looking to do here.
Speaker 2 (27:00):
That's right.
Speaker 1 (27:01):
If you're a treatment center and you're looking at
one of these solutions, whatshould somebody be looking for
and what should somebody be waryof and want to avoid?
Speaker 2 (27:13):
Yep, so I think what you're looking for is somebody
who is curious about yourprocesses, someone who really
wants to integrate into yourprocesses.
If it's a standalone service, Ijust and, by the way, this is
true for a lot of the services Iwould say the same thing about
(27:35):
finding a good lawyer.
It's someone who wants to be apart of your system and your
overall business, and not thisstandalone silo that you do your
thing and then we'll go andcollect, because that's the
people who are thestereotypically knocking on
doors and making threats andcalling people during dinner
time and whatever.
(27:55):
You want somebody who islooking out for your processes
and your reputation, becauseit's your reputation that's on
the line.
When somebody gets thisaggressive dinner time call,
it's you that looks like the badguy, not them.
So you want someone who reallyis focused on that and concerned
about it and cognizant of thetone that they're setting in how
(28:19):
they're doing this potentiallyreally jarring work.
Speaker 1 (28:23):
That makes sense.
That makes sense.
I really appreciate it.
And, Zach, this was reallyinformative.
This was some great information.
I really appreciate you joiningus.
We're going to be bringing Zachon again really soon and thanks
for joining us today and makesure to check out Nelson
Hardiman and Zach Rothenberg.
Thanks for tuning in toHatching Creativity.
(28:43):
We appreciate your support.
Please don't forget to like andsubscribe and tell all your
friends about the show andremember it's never just about
one thing.
Welcome to Hatching Creativity.
This isn't just anotherbehavioral health podcast.
This is the place where thoughtleaders converge to talk about
real life challenges,breakthroughs and pivotal aha
moments.
Thanks for tuning in toHatching Creativity.
Today I speak with ZachRothenberg from Nelson Hardiman
Law Firm.
Zach is a behavioral healthcare attorney who focuses on
(00:24):
billing and employment law.
In today's episode, we speakabout common pitfalls treatment
centers fall into as it relatesto payers.
We also discuss common issueslike how to avoid clawbacks or
losses of contracts.
If you like what you hear,please like, share, subscribe
and tell all your friends aboutHatching Creativity.
(00:45):
Our guest today is ZachRothenberg from Nelson Hardiman
Law Firm.
Zach, would you like to give abrief introduction about
yourself?
Sure?
Speaker 2 (00:54):
Be happy to.
I am a health care lawyer at afirm called Nelson Hardiman.
We are 20 lawyers.
Our main office is in Westwood,right here in Los Angeles,
California.
We focus exclusively on thepractice of health care,
representing health careproviders from individual
practitioners all through someof the largest health care
(01:14):
systems in the country andeverything in between.
We have a particular focus inbehavioral health and in SUD
treatment in particular.
I would say, at least for me,it's probably.
I would say, two-thirds of thework that I do is in that
industry.
I've been practicing law forabout 20 years.
Graduated of Harvard Law School, spent a lot of time at big
(01:35):
firms and really big firms andthen a very small firm where I
litigated entertainment cases,realized those are not quite my
people.
The health care world, thetreatment world in particular, I
found are really my people, mycalling, and I feel like I'm
really at home in that world.
Speaker 1 (01:53):
That's great.
How did you get involved inbehavioral health care world?
Speaker 2 (01:58):
You know, it really wasn't something that I
necessarily saw out.
I kind of just happened into itas I was making this transition
from entertainment to healthcare.
I just started doing, almost byhappenstance, some work for
some treatment providers and Ijust really was intrigued by it.
I think, more than anything, itfelt to me like a purpose, like
(02:21):
a mission, a really underfunded, undervalued enterprise
that was helping more and morepeople every year.
The need was growing every year.
To me still, if you ask theordinary person on the street
what they think about thisindustry, it still has this real
stigma and kind of a black mark.
It's a shady industry.
People are taking advantage offolks.
(02:43):
I see that To me it turns into.
These are the people I need todefend and represent and kind of
clear their name into thefuture, because it's just such a
valuable, valuable service.
Speaker 1 (02:58):
You know, what's real interesting to Zach is that if
you look at the people workingin the behavioral health care
field, you're going to be hardpressed to find somebody who's
not extremely passionate aboutwhat they do.
People in this field see a senseof purpose here, and that's one
(03:19):
of the things I love about it.
That's something that youidentified here too.
Unfortunately, though,oftentimes they're not
professional business people andthey have another mission or
another reason why they're inthis field.
Because of that, it exposesthem to a lot of risk.
So finding a law firm andattorneys that are in your same
(03:44):
mindset and understand that thismay be where the providers are
coming from, I think that couldbe really valuable, which is
part of the reason that Ibrought you on today, because
there's a lot going on in theworld of payer and payer
relations, what people aregetting paid, and there's a lot
(04:06):
of topics going on right now inthat area, and I'm curious from
a legal standpoint and the workthat you do.
Can you tell me some of themost frequently, most frequent
things people stumble into andsome of the hottest areas right
(04:29):
now being discussed?
Speaker 2 (04:31):
Yeah.
So I'll give you two, andthey're sort of similar but they
raise different issues and theyboth are payer audits.
So I'm a little bit repeatingmyself here.
But the insurance companies, inmy view, are always looking for
opportunities.
They are a for-profit business.
They are the opposite of whatyou just described as what
(04:54):
drives the treatment folks.
They are purely motivated bythe bottom line.
I don't think anybody gets intoinsurance out of a feeling of
passion In any case.
So you couple that with a fewthings that the kind of bad
reputation that the treatmentindustry has based on, kind of
the bad acts of a few bad applesand bad publicity, this huge
(05:19):
surge in the need for behavioralhealthcare, the what I see as
kind of a lack of clarity or inoutcomes, outcome metrics, and
what you get when you combineall that together is the
insurance companies feeling likethey have the opportunity to be
extra aggressive in denyingclaims on the front end and, I
(05:41):
think, increasingly clawing backmoney on the back end.
So what I'm seeing isparticularly from SIGNA not to
name names is what I call pay toplay audits, where they send
out a request for records, for asampling of clients and
invariably come back with thislitany of what they call
(06:01):
problems or issues that, by theway, are generally related to
paperwork.
They're not related to patientcare, not related to quality of
care, they're generally notrelated to medical anesthesity,
anything like that.
They're paperwork.
You signed where you shouldhave initially, you initially
where you should have signed,and they say, as a result we
want our money back for whateverwe paid you on these claims.
(06:23):
And then they say number two wealso think it was systematic
what you were doing.
So not only do we want ourmoney back for those 20 patients
or whatever that were part ofthe sample, we want all the
money back that we've ever paidyou because we believe that
you've been.
This is representative of thefact that you've been doing this
all along and there's horriblemistakes that we've identified.
And then they say and thereforewe are flagging you and we're
(06:47):
gonna not pay you and that denyall of your claims going forward
until this is resolved.
So the upshot is you need towrite us a big fat check or else
you cannot treat our membersgoing forward and I've probably
handled two dozen of these overthe past year or two.
I mean, it's just everywhere.
I don't know what tips, but Ithink that's the biggest thing
(07:12):
that we're gonna have to do isto sign off to initiate these
audits.
I have a suspicion that it'sjust the number of dollars of
claims that are going to sign itas opposed to anything
substantive, but I don't know.
But it's really something thatcauses great stress financially,
emotionally and otherwise onthese providers, especially the
(07:33):
smaller ones who are getting hitwith clawbacks.
There are sometimes sevenfigures.
I'm sorry, this is along-winded answer.
I don't know if it's more thanyou intended.
Speaker 1 (07:40):
It's valuable Absolutely.
Speaker 2 (07:42):
Great.
The second one is courtesy ofOptum.
This is a little bit newer.
We're seeing these audits thatare focused exclusively on
collecting from patients, whichhas been a topic for a long time
whether, how and whetherproviders are required to
collect from their patients thepatient contributions so co-pays
(08:02):
, deductibles, things like that.
These new audits are sayingsend us all the records that
relate to your efforts tocollect from patients for a
sampling of Optum's members.
Then they respond and generallysay it looks like you are not
collecting or not makingsufficient effort to collect.
Therefore, we're not asking forany money back, but we are
(08:27):
going to deny your claims.
Going forward on the assumptionthat you are waiving patient
responsibility and we considerthat to be fraudulent, we're
going to deny your claims.
You have the opportunity,though, to appeal the denials
and with substantiatingdocumentation showing that
you've collected from thepatients.
Once you appeal with theserecords that shows you've
(08:50):
collected, then we'll pay youour share.
This, to me, is hugelyproblematic and groundbreaking
in a number of ways.
First of all, it's a reallysubstantial change from the past
, where we've had anunderstanding that providers
certainly can't systematicallywaive patients.
They can't tell patients look,come to us, we're out of network
(09:11):
, we're not going to charge youanything.
That has been a no-no for along time and you can't
advertise that.
You can't do it systematicallyacross the board.
However, there's been anunderstanding that, look, the
patient population frequently isnot in great financial
situation.
It may invariably be thatyou're not going to collect from
(09:32):
the patient, but you have totry.
You have to make a real effort.
There's old wives tale that youhave to send out three invoices
, which I think is a myth, butyou do have to make a good faith
effort.
But this is now saying this newaudit from Optimus saying you
actually are required to collectbefore Optim has to pay you
anything.
There's no law that says that.
(09:52):
There's no deadline in any lawby which you have to collect.
It's not realistic that everyprovider is going to collect
from every patient 100 percentevery time.
To me this is groundbreakingstuff.
It's pushing the envelopereally really far beyond what
the law requires.
Again, it's a new opportunityto deny claims.
(10:15):
Those are the two hot topicswe're seeing.
Speaker 1 (10:18):
Those are the two hot topic.
I'm never shocked at what theinsurance companies do at the
expense of their members.
At the same time, what I thinkwould also be really helpful,
zach, being that this is reallyyour area of expertise.
(10:39):
I'd like to walk it back alittle bit, root each of these
topics and discuss some ideasthat you can, or a provider can,
use to protect themselves inthese situations.
The first one, where you weretalking about specific
documentation and that it's doneto the T.
(10:59):
I think it's really importantthat people know and understand
their policies, what theirprograms are.
That is really important.
Then, of course, beingextremely detailed, don't have
Joe the janitor dealing withdocumentation.
(11:21):
It needs to be somebody who iscompletely undistracted and
focused solely on that as theirjob if you want to have things
done right.
That just seems low hangingfruit, but from your perspective
and from your experience, whatare the best tips that you can
give to protect yourself fromthis kind of punitive audits?
Speaker 2 (11:46):
The first one you hit right on the head, which is
just your documentation has tobe pristine, it has to be
perfect and complete.
I find that people have it intheir heads that kind of good
enough is good enough, and whatI tell people is that at the
first pass it may be right.
(12:07):
I mean, things go under theradar all the time.
These insurance companies aredealing with just a huge volume
of claims and stuff to look at,and so you might be right that
things go under the radar for awhile.
But the problem, though, is, assoon as there's an audit and
there inevitably is they'regonna take advantage of any
little opportunity you give them.
(12:29):
So it's critical that you haveto.
It's hard psychologicallybecause you have to have the
motivation within yourself tomaintain perfect paperwork
always, Because you're not gonnasee the benefits of it
necessarily for some time ormaybe ever, but it's very likely
that at some point you'll beaudited and you will be thankful
(12:51):
that you pushed yourself ashard as you did to be as careful
and complete with yourpaperwork as possible.
The other thing that comes up alot is how making sure you have
a real sense of clarity as towhat is being expected of you,
and it differs from payer topayer and it seems like it
(13:12):
differs from year to year withineach payer, and a lot of folks
think that they can kind of playdumb, that if push comes to
shove they'll just say well, Iguess I was confused.
I was looking at Optum and notSIGNA, or SIGNA and not Edna or
whatever it is.
Or I was looking at 2021'sinformation.
(13:32):
My bad, and that may get you outof a lawsuit.
It may make it not fraud thatyou made a mistake, but in an
audit or something like that,there's no intense requirement.
If you aren't following themost up-to-date current
(13:52):
requirements, they're not gonnapay for it, and if they've
already paid you for it, they'regonna get their money back or
they're gonna insist on theirmoney back.
So it is-.
Speaker 1 (14:01):
Some lessons are more expensive than others too.
I mean, this could be a veryexpensive lesson that you're
helping people prevent right now.
Speaker 2 (14:10):
So an example, just put one fine point on it.
An example that comes up everytime is the notion of what is
evidence-based versusnon-evidence-based therapy, and
a lot of the payers will say acertain percentage of your time,
the hours that are part of aday of IOP or whatever, need to
be quote unquote evidence-based,and no one none of my clients
(14:35):
at the start of this discussionknow what that means.
When they have a vague notion ofwhat evidence-based is and they
may actually have a really goodunderstanding of what may be an
MD, psychiatrist and have agreat educational background on
what is evidence-based or notthey don't know what each payer
means by evidence-based andunfortunately that's the
definition that matters.
So I would encourage people tonever be comfortable being even
(14:59):
10% unclear.
Pick up the phone, make a phonecall to the payer whoever your
representative is, your contactis, or maybe calling you, mike
or somebody who has a contact,or me and figuring out a way to
get the answer from each payeras to what it means to be
evidence-based what hours aregoing to count?
Because eventually it's gonnamatter and you need all of your
(15:22):
hours to count or else you'regonna get caught back.
Speaker 1 (15:28):
You know to your point here.
I have had so manyconversations with Renee about
this and people are afraid toreach out to their payers.
They're afraid to reach out totheir legislators, they're
afraid to reach out to theirstate or the Joint Commissioner,
whoever it is, because they'reafraid that that might run up
some kind of a red flag thatthey're asking these questions
(15:52):
At the same time.
Usually it's appreciated I knowfrom the auditors and from the
surveyors and from the statesand Joint Commission.
This is what they wanna do.
They want to give people goodinformation From the payer
perspective.
Is that what's encouraged toreach out to the payer and who
(16:16):
at Cigna or Optum or BCBS wouldsomebody be reaching out to to
get this information and toensure that they get the right
information?
Part two of that question ishow do they document the
conversation and what they weretold in the event that what they
were told may have been wrong?
Speaker 2 (16:38):
Yeah, both of those are good questions.
The first part is A tricky one.
I sometimes wonder what thepayer's motivation is.
Right, because on one hand youcan see at least in the SIU side
of it they have an incentivefor you to not bill correctly.
Speaker 1 (17:02):
Because they are a moneymaker.
Speaker 2 (17:03):
They're a profit center for the insurance company
.
They claw back bad claims, whatthey consider to be bad claims.
So if they fix the problem onthe front end, there's sort of
less low hanging fruit for themto collect on the back end.
So sometimes it is not.
I think that's probably thereason there's no 800 number
with operators standing by handsor all the professions Because
they don't necessarily want tomake it easy on you, but I do
(17:25):
think there are ways to forceanswers, and sometimes it takes.
In my experience it can takesending several letters and
making some kind of veiledthreats at litigation or
something before you're able toget a phone call or a Zoom with.
For me, it's usually a lawyerwho knows the answers to these
questions.
So it takes some pushing butwe're able to do it.
(17:47):
I wish it were easier and itseems to me if there was a
genuine interest in having thisall done the way they wanted it
to be done, it would be easier,but it's not always the case.
Speaker 1 (18:00):
And what about verifying the information that
you're given?
How do you make sure that, whensomebody tells you something
from one of the pairs, that theinformation is accurate, or how
do you at least document thatyou got that information from
them, should you end up having aclawback anyway?
Speaker 2 (18:18):
You sound like a guy who's worked with lawyers before
you should absolutely alwaysdocument these and ideally,
you're sending if you know theemail address or the heart
address of the person you'vebeen speaking with, you send
them some kind of confirmingletter.
That's what I do.
I'll send me a thanks for themeeting.
(18:40):
I just want to make sure that Iwas understanding.
Here's how I understand.
We should be doing X, y and Z,going forward, and you spell it
out, and you won't get aresponse.
But that's fine too, I guess.
Alternatively, you send a memoto the file or something like
that.
But yeah, you want to havesomething.
And, by the way, it's not justso that you can hold it up and
(19:00):
say see, I asked, this is whatyou told me, it's also so that
you don't forget.
So you have a record in yourfile of exactly what they said,
so that you do it right.
Speaker 1 (19:08):
I like that.
I think that those are a coupleof really good ideas and I
appreciate that One of thethings that we recommend very
regularly is chart auditing, too.
How often people don't audittheir charts or they just audit
their charts to keep the jointcommission off their back.
But really chart auditing is ahuge time saver, money saver,
(19:36):
risk reducer, as well as goodchart auditing is going to
improve your clinical skills andyour documentation skills.
But those are some things thatare really important to keep an
eye on for sure.
Speaker 2 (19:50):
It's a real mental reset.
Right People audit their chartshoping they don't find problems
.
You should almost hope you dofind problems, because then
you're fixing them right.
It's something to show for allthis hard work of auditing.
Don't be afraid to findmistakes.
It's better that you find themthan that you just ignore them.
Speaker 1 (20:06):
It's better that you find the mistakes than the
auditor comes in and finds ittoo.
So, with your second point,where you were talking about
patient responsibility, what areyour tips or what kind of
advice would you have onprotecting yourself from getting
into trouble relating tocollecting and documenting your
(20:29):
patient responsibilities?
Speaker 2 (20:30):
Yeah, again, it comes down to documentation and you
want to make a real effort.
The biggest point I can make isthat the notion that you can
send three invoices to the lastknown address is not a real
thing.
I don't know where that camefrom and why people think that's
gospel, but it's not.
(20:52):
It shouldn't be, because Ithink most of the time when
people do that it's just paperpushing.
They know that they're notreally trying to collect and
they genuinely do have anobligation to try to collect in
a real and meaningful way.
Again, there's nothing wrongwith sending invoices, but if
you know that that's not wherethe person lives anymore or you
(21:15):
know that they're just throwingthese things in the trash, you
got to do something different.
You have to really show thatyou are making the efforts of a
reasonable business person whois genuinely trying to collect
this money.
You don't have to go to theends of the earth if you know
someone is homeless or broke oryou don't know where they are.
There's no reason to spend afortune I don't know, spiling a
(21:39):
lawsuit or sending out aninvestigator to track them down
for a couple of hundred dollars.
That doesn't make any sense.
But you have to make whatappears to an objective
bystander to be a reallegitimate business decision and
make real legitimate businessefforts to try to collect.
That's number one.
A loophole is certainly not theword.
(22:05):
The one big sort of alternativeapproach that you can sometimes
take is I do think there is anopportunity to consider
financial hardship Because, asyou know, the patient population
obviously often is experiencingdifficult financial hardship.
And so I think there is anopportunity to again document
(22:32):
and evaluate the financialsituation of the client and
determine whether there is apossibility for hardship.
And we have all sorts ofpaperwork that we've developed
over the years and actually hadvetted by some of the major
payers to document hardship,sort of on a sliding scale based
on the federal povertyguidelines, to determine whether
(22:54):
and to what degree we canreduce the patient's financial
responsibility based on theirfinancial situation.
So that's another big factor.
Speaker 1 (23:03):
It's also important to mention, with what you're
talking about, that you have apolicy around this, that you
document.
What is our standard policyaround scholarshiping or
financial hardship?
Because if you don't have apolicy and you're just flying by
(23:24):
the seat of your pants withthose things, you're still at
risk.
Yes, even if you have anunderstanding of what you're
talking about and you have anunderstanding of poverty levels
and what someone's financialsituation means in their
specific location, you stillneed to document and have it
(23:48):
written in your policies,because you will be asked to
have your policies looked at too.
Speaker 2 (23:54):
And to follow those policies in a consistent manner.
You wanna do the same thingevery time and, by the way, not
just for the benefit of thepayers or whoever, but also so
that you're not showingfavoritism right?
There's a potential fordiscrimination here who you're
gonna give a hardship, a feereduction to, and who you're not
(24:15):
.
You wanna make sure that it isblind to everything except the
financial need.
Speaker 1 (24:20):
Well, that's a good point and it's also important to
mention anytime you weretalking policy that you are
documenting.
You're supporting documentation, you're supporting evidence
that you're actually followingyour policy right, because
anybody can say that they'redoing anything.
But you need to be able to backthat up and have your
(24:43):
information readily available toyou so that, one, you can audit
yourself, but two can beprepared when that inevitable
audit happens.
If you don't have it handy orif you're not ready with it at a
reasonable amount of time, itcould set off red flags that
you're just making it up.
(25:03):
So things to consider here.
What are your thoughts onsolutions like FinPay or one of
these kinds of softwarecompanies or financial backers
that helps with that payerresponsibility?
Have you had any experiencewith anything like that?
Speaker 2 (25:25):
To a degree, but I would say it's more so folks who
try to incorporate or integratethe collection process into the
admissions process.
Right, so that you are.
They say you should be talkingabout discharge planning from
day one.
You should also be talkingabout these financial issues
(25:47):
from day one and how you'regoing to collect.
You don't need to startcollecting on day one, but you
want to make your expectationsclear.
You want to explain what'sgoing to happen down the road
right away.
And so I know there arecompanies out there I've worked
with plenty of them who get inunder the hood and really get
into your processes so thatthey're involved from day one in
(26:12):
forming and settingexpectations, getting
information from clients, sothat on the back end your
collections will be smoother andmore effective and less jarring
.
I think a lot of the pushbackfrom providers on collecting
from patients is you don't wantto upset your clients, right?
They're in a difficultsituation as they are.
They're already vulnerable andthe client's always right.
(26:35):
You kind of have that mentalityright.
So I think these services canalso help set expectations so
that when you go to collectyou're not the bad guy, at least
in your own mind.
Speaker 1 (26:46):
Well, you take somebody who just got out of
treatment and all of a suddenthey've got this huge bill.
You know that's a very good wayto throw somebody into a
tailspin, which is not whatwe're looking to do here.
Speaker 2 (27:00):
That's right.
Speaker 1 (27:01):
If you're a treatment center and you're looking at
one of these solutions, whatshould somebody be looking for
and what should somebody be waryof and want to avoid?
Speaker 2 (27:13):
Yep, so I think what you're looking for is somebody
who is curious about yourprocesses, someone who really
wants to integrate into yourprocesses.
If it's a standalone service, Ijust and, by the way, this is
true for a lot of the services Iwould say the same thing about
(27:35):
finding a good lawyer.
It's someone who wants to be apart of your system and your
overall business, and not thisstandalone silo that you do your
thing and then we'll go andcollect, because that's the
people who are thestereotypically knocking on
doors and making threats andcalling people during dinner
time and whatever.
(27:55):
You want somebody who islooking out for your processes
and your reputation, becauseit's your reputation that's on
the line.
When somebody gets thisaggressive dinner time call,
it's you that looks like the badguy, not them.
So you want someone who reallyis focused on that and concerned
about it and cognizant of thetone that they're setting in how
(28:19):
they're doing this potentiallyreally jarring work.
Speaker 1 (28:23):
That makes sense.
That makes sense.
I really appreciate it.
And, Zach, this was reallyinformative.
This was some great information.
I really appreciate you joiningus.
We're going to be bringing Zachon again really soon and thanks
for joining us today and makesure to check out Nelson
Hardiman and Zach Rothenberg.
Thanks for tuning in toHatching Creativity.
(28:43):
We appreciate your support.
Please don't forget to like andsubscribe and tell all your
friends about the show andremember it's never just about
one thing.
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