What to Do When Services are Not Paid by a Commercial Payer

From the Jan/Feb issue of HBMA Billing by Penny Noyes

If a practice is contracted as a participating provider with commercial insurers and networks, it must pay close attention to the patient "Hold Harmless" sections of the agreements. Many agreements prohibit billing the patient for services that are unpaid due to the insolvency of a payer (which may be the insurer or a self-funded employer), when the payer deems a service not medically necessary, for lack of compliance with utilization programs, or for failure to file a claim in a timely manner. Some agreements even go so far as to prohibit a practice from having a waiver signed by the patient in which the patient agrees to be responsible in these circumstances.

The best way to protect a practice so that it can bill the patient for services not paid for by the plan is twofold:

1. Re-negotiate the language in agreements in the Member Hold Harmless provision, sometimes called "Billing the Patient," or the like, to more favorable language.
   
2. Implement a patient financial responsibility statement / waiver* and signature process so that your patients acknowledge their responsibility to pay during these circumstances.

In re-negotiating the contract language, be sure the terms reflect that it is "only when required by applicable law" that you will not bill the patient / member under the circumstances that the plan is insolvent or has determined that the billed services are not medically necessary. In many states, practices are bound by such provisions by state regulations, but only with respect to state regulated HMOs and certain fully insured or government plans. These plans are generally required by law to retain reserves that will pay claims for a matter of months should the plans become financially unstable.

The majority of the members / patients that practices see under most agreements are in self-funded plans that operate under the federal Employee Retirement Income Security Act (ERISA). These plans do not have the same regulatory reserve requirements as the plans discussed above, and the contract should reflect that a patient waiver for such plans can be used to hold patients financially responsible if a self-funded plan does not pay for any service. The risk of a self-funded plan going belly up overnight and not having funds reserved to pay recent claims is therefore much greater. If a practice signs a network agreement that says that it can never bill the member for services not paid for by the self-funded plan, even in the case of insolvency or when the plan determines the service to be medically unnecessary, then billing the patient is technically prohibited even when there is a waiver signed by the patient agreeing to pay for claims in these cases.

In revising your patient responsibility statement or waiver for patients covered under private payer plans, be sure to specifically include the patient's promise that he or she will be financially responsible, as allowed by applicable law, in the event that:

• His or her insurer or self-funded employer does not pay the claim in a timely and accurate manner
  
• The insurer or payer deems the service to be either not medically necessary or to be an excluded or non-covered service
  
• The payer or insurer denies the claim for lack of timely filing or adherence to utilization or payment policies
  
• A claim is prospectively or retroactively denied due to lack of eligibility or benefits

Although the practice is obliged to adhere to utilization management programs and payment policies in most agreements, many payers' programs and policies are not readily accessible, especially when leased networks are involved. The patient needs to be financially responsible and compliant with program requirements. When a multitude of claim administrators and employers are renting a network such as Multiplan, Galaxy, or Three Rivers Provider Network, each party leasing the network may have unique programs and policies that are not found on a central web site or portal. There can be some very good reasons to contract with leased networks, but these varying policies can make monitoring those who rent the networks more challenging. Sometimes these networks are less likely to modify the hold harmless language so as to appease all of their renting parties.

In addition to the hints provided above, when defining and administering the terms of the patient responsibility statement / waiver, the practice should be prepared to advise the patient in advance of denial, if it is aware that a service may not be covered. Provide the patient with the likely cost and payment terms that will be accepted, preferably in writing, including any prompt pay or hardship discounts that might apply. This type of communication can assist you in managing the patient's expectations and his or her commitment to timely payment. These extra steps can also add to the practice's compliance with the newly negotiated and more favorable hold harmless terms.