Read the Addendum

Physicians Need to Keep the Pressure on Aetna

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Law Feature - February 2006

By  Erin Prather  
Associate Editor

Holiday greetings were not the only thing you should have received in the mail as 2005 drew to a close. Aetna sent physicians an important contract addendum. It reflected the changes in business practices Aetna agreed to make when it settled its portion of a class-action federal antiracketeering lawsuit more than two years earlier.

In a cover letter to the addendum, Aetna Chief Medical Officer Charles Cutler, MD, says it "outlines, reinforces, and clarifies selected provisions within the 2003 Physician Settlement Agreement and affirms our commitment to further strengthen our relationship with physicians."

Among the addendum provisions is language formalizing a patient's right to medically necessary care determined by a physician exercising clinically prudent judgment in accordance with generally accepted standards of medical practice.The plan may require cheaper alternatives only if they are "at least as likely to produce equivalent therapeutic or diagnostic results," the addendum says.

The addendum also clearly defines "clean claims" and "medically necessary services," it prohibits "gag clauses" that prevent you from discussing treatment options or covered services with a patient, and it says Aetna will not require you to participate in capitated fee arrangements.

Texas Medical Association General Counsel Donald P. Wilcox, JD, notes that the settlement provides that state law prevails where it is more favorable to physicians than the terms of the settlement. For example, for patients covered by insured products, Texas' medical necessity dispute resolution process may still be used, even though there is a medical necessity review process available in the settlement. The Texas process, supervised by the Texas Department of Insurance, uses outside peer review organizations such as TMF Health Quality Institute.

Aetna also agreed to extend most of the settlement provisions for one more year, to five years, after compliance issues were raised by the Settlement Compliance Work Group. And, the executive directors of the California and Connecticut state medical societies met with Aetna President Jack Rowe, MD, to complain about Aetna's failure to comply with the agreement. 

Eternal Vigilance

Don't just stick the addendum in your files. Read it carefully to be aware of your rights and obligations.

If you discover that's Aetna's policies, procedures, or practices are inconsistent with the settlement or the contract, report it to Birmingham, Ala., attorney Julia Smeds Stewart, the compliance dispute facilitator. Ms. Stewart will review the issue and determine if Aetna is adhering to the settlement. If not, she will call the matter to Aetna's attention under a process set out in the settlement. There is no cost to you.

"I serve as the physicians' lawyer during the terms of the settlement. For Aetna, the settlement enforcement provisions will go until June 2, 2008," she said. "Any conduct by Aetna that physicians feel is wrong should be brought to my attention so I can evaluate whether it does fall within the settlement and if I can help them. By filing valid compliance disputes, Aetna can be encouraged to adhere to the settlement. Physicians have an opportunity to help assure that the terms of the settlement are followed."

You can file a complaint if you have not opted out of the settlement. The complaint must be filed within 30 calendar days of the date the dispute arose. The form must be completed by you or your office staff and must include your signature.

Specific facts must be provided about why you believe Aetna is not fulfilling its settlement obligations. Any supporting documents, including any correspondence with the health plan, should also be included so that Ms. Stewart can determine the merits of the complaint.

"When the compliance dispute is filed with proper documentation, I'm able to evaluate whether it is a compliance dispute or a billing dispute. There is a difference. Although the settlement was able to obtain many positive changes for the medical profession, not all of Aetna's misconduct will fall within it," she explained.

A step-by-step guide to resolving compliance and billing disputes, the compliance dispute form, and excerpts from Section 7 of the Aetna Settlement Agreement are available on the TMA Web site at  www.texmed.org/rico.

After Ms. Stewart receives the compliance dispute form, she will let you know if the form is properly completed, and whether, in her opinion, the alleged wrongful conduct is a compliance dispute.

Many physicians have filed compliance disputes alleging Aetna's failure to adhere to the coding, bundling, and modifier rules it agreed to in Section 7 of the settlement. Examples of these issues (such as the failure to recognize modifiers) are also available on the TMA Web site in the online HMO Antiracketeering Lawsuit Settlement Enforcement Toolkit. The toolkit contains the addendum and the forms physicians need to file a compliance dispute.

Ms. Stewart can be reached by e-mail at jstewart@waadlaw.com or by phone at (877) 760-0157.

TMA can help you with compliance issues. You can contact the TMA Office of General Counsel or the TMA Health Care Financing Department at (800) 880-1300 or (512) 370-1300 for help.

Aetna was the first of the 10 for-profit health insurance companies in the class-action lawsuit to avoid a trial by settling with the plaintiffs. The suits charged the companies with racketeering by maintaining claims-processing practices and systems that lowered physician reimbursement. TMA and other state medical societies, along with physician representative plaintiffs across the country, filed the lawsuit against for-profit HMOs in 2002.

Since then, CIGNA, Health Net, Prudential, WellPoint, and Humana also have agreed to settle with the state medical societies and physician plaintiffs who represent the nation's 700,000 physicians in the case. The value of the settlements exceeds $1.5 billion in retrospective and prospective relief.

Trial for the remaining defendants is scheduled for April 16 in U.S. District Judge Federico Moreno's Miami court. They include Coventry Health Care, PacifiCare, and UnitedHealthcare.

Erin Prather can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email at Erin Prather.  

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