Law Feature - August 2009
Tex Med. 2009;105(8):41-47.
By Crystal Conde
Robert D. Mock, MD, a family physician in The Woodlands, may have to tell his approximately 70 patients enrolled in Humana's Medicare Advantage (MA) PPO plan it will cost them more to continue to see him. The thought disappoints the physician, who has been in practice for 30 years and who considers himself a cost-effective professional who delivers quality care.
Dr. Mock received a written notice from Humana in May informing him he'd been terminated from Humana's MA PPO network, effective Aug. 1, because he didn't "meet the efficiency threshold for participation" in the plan. He says he'll fight his deselection. At press time, Dr. Mock had appealed and was gathering documentation to support his request for reinstatement in the network. A Humana advisory review panel of physicians will make the final decision after examining data provided by Dr. Mock and the insurance company.
Dr. Mock is no novice when it comes to the appeal process. He's appealed numerous deselections from other insurers in the past and prevailed.
When an insurance company kicks a physician out of a network, Dr. Mock says, it traps the patients, who have to pay higher out-of-network fees to continue to see their doctors. Then they must wait until the end of the insurance calendar year to find a new, more affordable plan that will allow them to remain in the care of their trusted physician. Dr. Mock is on a mission to preserve his patient relationships.
"When Humana deselects me as a physician, they're in essence deselecting my patients from me. My patients have chosen me to be their doctor. My response to this is I'm fighting as an advocate for my patients," he said.
Humana isn't just terminating physicians from its MA PPO plan; it's also notifying doctors in its Humana Preferred PPO and Humana Preferred Point of Service-Open Access networks that it's deselecting them.
Martha Vijjeswarapu is the wife of and office manager for Daniel Vijjeswarapu, MD, a Corpus Christi pediatrician deselected from both Humana Preferred plans. The insurance company determined that Dr. Vijjeswarapu did not meet access requirements or the efficiency threshold for participation in the networks. Ms. Vijjeswarapu requested and was granted a Humana advisory review panel to examine the basis for her husband's deselection. At press time, she was awaiting the panel's decision.
State law requires HMOs and PPOs to give physicians an opportunity to have their insurance network deselection reviewed by a panel of physicians. The Centers for Medicare & Medicaid Services (CMS) Managed Care Manual [ PDF ] stipulates that MA organizations must allow affected physicians to appeal deselection and give them written notice of their right to a hearing, as well as the process and timing for requesting a hearing. The MA organization also must ensure that the majority of the hearing panel members are peers of the affected physician.
Both Ms. Vijjeswarapu and Dr. Mock say the Texas Medical Association helped them navigate the Humana appeal system.
"TMA has been extremely helpful. They've guided me and encouraged me to write a letter of appeal," Ms. Vijjeswarapu said. "They can't tell me what to write, but they'll answer my questions and point me in the right direction."
TMA encourages physicians who wish to preserve their relationships with their patients to appeal their Humana deselection. The association also has compiled a checklist to use when putting together an appeal. (See " TMA Checklist for Deselection Appeals .")
The TMA Knowledge Center can help physicians with network deselection or ratings problems. Call (800) 880-7955 or e-mail TMA Knowledge Center .
Patients concerned about potentially losing their physicians due to deselection can file complaints, as well. Physicians should direct patients with private insurance who would like to file a complaint to call the Texas Department of Insurance (TDI) Consumer Help Line, (800) 252-3439, or to fill out an online form .
Medicare patients may complain by calling (800) MEDICARE.
Humana didn't tell TMA how many physicians it is removing from its MA PPO or Preferred plans. Any time an insurance company deselects physicians from its networks, the effect on the physician-patient relationship is devastating, says Robert Emmick, MD, past chair of TMA's Patient-Physician Advocacy Committee.
"People are tied to their insurance, and in some cases they've been seeing their physicians for many years. When their doctor is kicked out of an insurance network, these patients are left without a medical home. These patients may have chronic medical problems their physicians have spent years treating and are familiar with," Dr. Emmick said.
Despite the impact on patient care, Humana sent the notices, which included the reasons for deselection and information about the appeal process. Humana's MA PPO notices say:
- Humana reevaluated and is reducing the size of its MA network, while maintaining or exceeding CMS standards.
- The evaluation included a review of the physician's efficiency using a claims-based, episode-of-care methodology.
- Humana also considered MA PPO network access requirements, practice specialty needs, and geographic factors.
- Physicians may ask an advisory board to review the decision if they submit a written request within 30 calendar days of receiving the notice and include any written information to be considered in the review.
- Physicians have the right to object to the deselection within 90 days via a written request.
The Humana Preferred PPO and Humana Preferred POS-Open Access notices say:
- Humana created the products based on customer demand for lower costs.
- A physician's participation was determined by using industry-standard, episode-of-care methodology based on inpatient, outpatient, ambulatory, and pharmacy claims data, and adjusted for severity and geography.
- Physicians may request an advisory panel review of the decision as required by TDI regulations. Humana says physicians must submit a written request within 14 calendar days of receiving the notice, and physicians may submit supporting documentation for the review within 28 calendar days.
- Physicians also have the right to request an expedited review by submitting a written request within seven calendar days of receiving the notice and submitting supporting documentation within 14 calendar days.
In a written statement, Tom James, MD, Humana medical director for national network operations, outlined the appeal process.
"Physicians who timely made a request have a right to a review of the business decision to discontinue their participation in our products through an independent physician advisory review panel. The panel complies with the requirements of the Texas Department of Insurance for commercial products and of CMS for Medicare Advantage products. The panel's recommendation is considered by Humana, and then Humana makes the final participation decision," he said.
Dr. James also said that in addition to the physician advisory review panel, physicians may contact Humana to request a review of the business decision and supporting information with Humana personnel. "If this review is chosen, a detailed report is provided, which includes data on cost efficiency, physician accessibility, and other factors. Physicians are able to dialogue with a local Humana medical director to interpret the information and the business decision," he said.
Physicians and their staff members may address questions or concerns to Humana's Provider Relations Department by calling (800) 626-2741 from 8 am to 6 pm Monday through Friday.
The Humana notices do not provide specific patient information or claims details that Humana used in deciding to terminate the physician or group. Without this information, it is virtually impossible for physicians to appeal the decision effectively, says TMA General Counsel Donald P. "Rocky" Wilcox, JD. TMA suggests physicians request all relevant information, including individual patient data used to determine accuracy, and explain why tests were or were not done.
Humana didn't give Ms. Vijjeswarapu or Dr. Mock patient-specific information. When Ms. Vijjeswarapu requested the information, she says no one she spoke to at Humana was able to determine how to obtain it.
Ms. Vijjeswarapu says that knowledge would have been helpful in determining the accuracy of the data Humana used to base its decision. She says the data provided by Humana indicate a lab test for one patient with pneumonia cost $2,000.
"That number is way out of whack," she said. "We have lab work done outside the office at a separate facility. They need to look at that again, because it's probably an error."
Dr. Mock also found questionable outlier data. Upon closer examination, he determined Humana deemed his charges for diabetes care too costly due to a difference in diagnostic coding. And a charge of $1,200 for one episode of care for gastroesophageal reflux seemed too high, he says.
"The data are confounding," he said. "I don't do a lot of procedures, and I'm a low-cost, low-tech doctor."
Legislation to Shed Light
Because physicians participate in a number of insurance networks, keeping track of the profiling standards each uses can be confusing and hazardous to patient care, says Dr. Mock.
"Profiling should be done to educate a doctor. It should teach us what we can do better for the insurance company, and then we can determine what we need to do for the patients and put them together to create some type of homogeneous medical care. But, in essence, it appears profiling is only used for deselection," Dr. Mock said.
Dr. Emmick agrees.
"When physicians know how they're being judged and evaluated, then they can validate or dispute the results. If given in an educational, timely fashion, they can perform corrective actions," he said.
New legislation that became law without the governor's signature in June will result in greater transparency in health plans' ratings programs, as well as due process for physicians who wish to appeal their ratings.
House Bill 1888 by Rep. John Davis (R-Houston) and Sen. Robert Duncan (R-Lubbock) requires health plans to ensure that any physician-rating system uses a valid methodology for measuring performance, gives physicians due process before publishing rankings, and mandates disclosure of the measurement standards to physicians before the evaluation period.
The commissioner of insurance must adopt regulations to guarantee insurers' ranking systems comply with standards and guidelines based on the National Quality Forum, AQA, and other nationally recognized standards the commissioner permits.
Among its provisions, HB 1888 requires that each physician who is the subject of a health care payment plan's ratings, tierings, rankings, or other comparisons be granted an opportunity to dispute the ranking or classification before being made public. The legislation states that the dispute process should include, at a minimum, protections that conform to the following:
- The health benefit plan issuer gives the physician at least 45 days written notice of the proposed rating, ranking, tiering, or comparison, including the methodologies, data, and all other information used by the health benefit plan issuer in its rating, tiering, ranking, or comparison decision.
- In addition to any written fair reconsideration process, the health plan issuer, upon a request for review made within 30 days of receiving the notice, provides a fair reconsideration proceeding.
- The physician has the right to provide information at a requested fair reconsideration proceeding for determination by a decision-maker, have a representative participate in the fair reconsideration proceeding, and submit a written statement at the conclusion of the fair reconsideration proceeding.
- The health plan issuer provides a written communication of the outcome of a fair reconsideration proceeding prior to any publication or dissemination of the rating, ranking, tiering, or comparison. The written communication must include the specific reasons for the final decision.
The law takes effect Sept. 1.
The ratings programs employed by insurance companies to determine who's in and who's out of network have long been a point of contention for physicians. In fact, TMA and even the Texas attorney general have found flaws and inaccuracies with the methodologies the health plans use to rate doctors, thereby determining their network status eligibility.
In a well-known case last year, Blue Cross and Blue Shield of Texas (BCBSTX) resolved a dispute with Attorney General Greg Abbott over its use of the controversial risk-adjusted cost index (RACI) tool to rate physicians' performance in its BlueChoice Solutions program. The company also pledged not to punish physicians for referring patients for medically necessary care outside its network.
BCBSTX agreed not to use RACI scores "to rate doctors' affordability or as an eligibility criterion to remove doctors from or add doctors to BCBS networks."
Before the attorney general's order, TMA, responding to numerous physician complaints about the RACI tool, convinced BCBSTX officials to eliminate it and worked with company officials to make ratings fair to doctors.
According to Ted Haynes, BCBSTX vice president of health care delivery, the insurer is working on new BlueChoice Solutions rating standards, which will have to be adjusted as necessary to meet the requirements of HB 1888.
TMA has created a chart physicians can use to compare the major health plans' rating programs and to access information about their procedures for appealing network deselection. (See " Insurer Ratings Programs Compared [ PDF ].")
TMA also is working to remedy another insurer practice it deems improper. A current federal policy could lead to damaged reputations and blemished records for many physicians.
Austin attorney Phyllis B. Schunck, JD, who is a legal expert in data bank reporting, says that under the present U.S. Department of Health and Human Services (HHS) policy, health plans report deselected physicians to the Healthcare Integrity and Protection Data Bank based on quality or competence, even though adequate due process hasn't been followed. TMA and the American Medical Association disagree with that practice.
Ms. Schunck says TMA and AMA believe the intent of the federal law governing data bank reporting is to notify hospitals and insurers of doctors who have received government sanctions such as Medicare exclusions, loss of license, or criminal convictions. Reporting physicians based on deselection from a plan's network without due process is neither fair nor required under federal law.
When a health plan adds a physician's name to the data bank after he or she has been deselected without due process, that gives a hospital or health care payment plan reason to think the doctor has participated in some form of health care fraud, Ms. Schunck says. She adds that it would be possible for a health plan to see that a physician was terminated from another plan and assume it was due to some improper activity. A health plan could also presume the physician's costs are too high and use that as a basis not to admit a doctor to its network.
"Both TMA and AMA agree it's inappropriate for a health plan to damage doctors' reputations in this manner without there being a real hearing. In recent years it has been used as a way for health plans to put a black mark on a doctor's record when the plan has terminated the doctor," she said.
TMA's Council on Socioeconomics has examined this practice, and the TMA House of Delegates adopted the following recommendations during TexMed 2007:
- The Texas Medical Association should strive to ensure that the Healthcare Integrity and Protection Data Bank enabling legislation and regulations and interpretive guidelines be amended to ensure that due process is provided before any reporting to its data bank; and
- The Texas Medical Association Delegation to the American Medical Association House of Delegates should introduce a resolution that would call on the AMA to work aggressively to amend federal laws, rules, and interpretive guidelines such that due process would be required prior to any reports by private health care entities to the Healthcare Integrity and Protection Data Bank.
According to Ms. Schunck, TMA and AMA are attempting to have the policy addressed at the federal level in order to keep plans from reporting physicians to the data bank purely on the basis of network deselection.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde .
TMA Checklist for Deselection Appeals
When appealing deselection or challenging rating decisions by insurers, the Texas Medical Association has this advice:
- Review your contract. Does the insurer have the right to profile physicians and restrict their access to patients? Does the contract specify the appeal mechanism or other rights with respect to profiling or tiering? Make sure you do not miss any deadlines.
- Request a complete copy of your profile, profiling methodology, and the data used, including patient-specific information. If the insurer does not respond, ask again. Do not accept incomplete information or data from the insurer. You should receive a complete analysis of the data and the rating system used.
- Review your profile report carefully. Pay attention to the number of cases used to determine your rating. Small sample sizes are the single biggest cause of inaccurate ratings. Compare the data referenced in the report with your actual claims/chart data. Is the insurer using another physician's data or missing vital information? Are there valid reasons for your practice variation? Examine your data for outlier cases, severity of illness, comorbidities, unusual demographics, and patient compliance problems. Insurers' risk-adjustment systems are often minimal, and expert opinions indicate that all are inadequate. None adjust for educational or economic status of patients.
- When developing an appeal letter, identify the data errors discovered. To document the errors, provide patient names, dates, and supporting documentation.
- Contact your county medical society, the American Medical Association, or TMA's Knowledge Center at (800) 880-7955 or TMA Knowledge Center if you are unsuccessful in your attempts to reconcile your rating.
- If you file a timely appeal within the deadlines, you should be able to stay in the insurance company's network pending the appeal.
TMA is tracking this issue. If you are considering filing an appeal, e-mail a copy to Liz Jero in the TMA Payment Advocacy Department and notify her of any resolution or concerns that arise.
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