TMA Files Suit on Behalf of Members
This summer, the Tennessee Medical Association and two Nashville physicians filed suit in Davidson County Chancery Court in response to letters sent to multiple Nashville physicians claiming improper billing and payments for medical services performed in 2006 and 2007.
The suit names Health Research Insights (HRI), the Metropolitan Board of Public Education (MBPE) and BlueCross BlueShield of Tennessee (BCBST) as defendants. HRI, a private recovery contractor, was hired by the school board to seek the return of claims payments made by BCBST that HRI contends were overpayments. BCBST is the third party administrator of MBPE's health benefit plan but has not alleged overpayment of any claims and has publicly denied involvement in HRI's efforts.
Yarnell Beatty, general counsel for TMA, said, the suit "came about because we got overwhelmed by complaints from our members who had received threatening, accusatory letters from HRI demanding payment or copies of medical records." These letters, he continued, were sent after the board's health benefit plan requested claims data from BCBST, shared the date with HRI, upon which HRI pointedly accused physicians of evaluation and management upcoding without review of medical records.
Beatty said the letters claimed physicians were overpaid and had 15 days from the receipt of the letter to return the alleged overpayments or send in their confidential medical records for review … and therein lies the rub. Beatty attested, "It's basically accusing physicians of fraud. You can't determine the proper code for an office visit without reviewing the medical record. It's impossible." He added the letters were thought to be a speculative fishing expedition to see what response was elicited. Some physicians who did not respond to the letters received high-pressure telephone collection efforts from HRI employees, according to TMA.
Beatty also noted that the wording of the HRI letters left it unclear to many physicians whether or not HRI was a government entity and raised concerns about patient privacy issues if records were handed over. HRI is not a government RAC but is instead a private firm.
"They contract with self-funded employee benefit plans," Beatty explained, "even though the claims were paid through a Physician Agreement made with BCBST … not the plan or HRI."
The lawsuit alleges a disregard of the terms in the BCBST Physician Agreement whereby BlueCross would control claims payment disputes. "In many cases, the state 'look back' statute has passed," Beatty continued, adding that this is another point of contention with HRI, which is trying to collect fees outside the 18-month, state-allotted timeframe designated for such reviews.
The suit asserts HRI induced the Metropolitan Board of Public Education to breach its contract with BlueCross; violated the State Consumer Protection Act by engaging in unfair or deceptive business practices toward the physicians; and attempted to circumvent state law and contracts involving BCBST, the school board and the physicians by sidestepping BlueCross' authority to recover any overpayments.
Alternatively, the suit states that if BlueCross didn't actually have the authority to contract on behalf of the board as BCBST had represented to physicians in entering into the BCBST Physician Agreement, then discounts given to MBPE through the BlueCross network were unwarranted, and physicians who provided services should be paid in full at the non-discounted rate.
"This is about protecting our patients' private health information and fair treatment for physicians," said TMA President Richard J. DePersio, MD, in announcing the suit. "We had to act because we cannot tolerate business practices that ignore state law and contracts, threaten patient privacy and make false accusations of physician fraud."
The lawsuit seeks an injunction and a declaratory judgment to stop the HRI tactics in violation of state laws and MBPE contracts. It also seeks monetary damages for defamation and expenses incurred by the physicians accused of over billing. David L. Steed of Cornelius & Collins LLP filed the suit on behalf of the individual physicians and TMA on June 12.