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Howell v. Hamilton Meats and Provisions (2011) 52 Cal. 4th 541 Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308. A hospital's "bill itself was based on the District's standard charges" and thus "is not an accurate measure of the value of medical services"
Howell v. Hamilton Meats and Provisions (2011) 52 Cal. 4th 541 Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308. A hospital's "bill itself was based on the District's standard charges" and thus "is not an accurate measure of the value of medical services"
Howell v. Hamilton Meats and Provisions (2011) 52 Cal. 4th 541 Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308. A hospital's "bill itself was based on the District's standard charges" and thus "is not an accurate measure of the value of medical services"
How to Establish " Negotiated Rate Differentials" in Medicare, Kaiser and Other Lien Cases STARTING PREMISE 2 Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308, 1325-1326. Damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services. WHO ARE WE? WHY ARE WE INTERESTED IN THIS TOPIC 3 Tami Rockholt, RN, BSN (Rockholt & Associates)
Seana B. Thomas, Esq. (Law Office of Seana B. Thomas)
David Rosenbaum (McDowall Cotter, APC) WHERE TO LOOK FOR SOURCES 4 Case Law Statutes PERTINENT CASES 5 Howell v. Hamilton Meats & Provisions (2011) 52 Cal. 4th 541
Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308
State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216 Cal. App. 4th 1463 (a Hospital Lien, hospitals bill itself was based on the District's standard charges and thus is not an accurate measure of the value of medical services.)
PERTINENT CASES 6 Luttrell v. Island Pacific Supermarkets, Inc. (2013) 215 Cal. App. 4th 196, 206 (Howell applies to Medicare and Medi-Cal payments)
Dodd v. Cruz (2014) Cal. App. LEXIS 118 (Discovery permissible if reasonably calculated to lead to the discovery of admissible evidence relating to the amount of medical expenses Dodd actually incurred)
In Re Avandia Marketing, 2011 U.S. Dist. LEXIS 63544, (E.D. Penn. 2012) (Medicare Advantage plans have same rights as Medicare) PERTINENT LIEN STATUTES 7 MEDICARE: 42 USC 1395 Y (B)2; 42 C.F.R. 411.20, Et. Seq HMOS: Civil Code Section 3040 WORKERS Compensation: Cal. Labor Code Sec. 3852-3862 HOSPITALS: Cal. Civil Code Sections 3045.1-3045.6 MEDI-CAL: Welfare & Instit. Code Sec. 14124.71-.791
REASONABLE VALUE 8 An Experts World 9 EXPERT OPINION 10
A qualified expert may opine on the reasonable value of medical services based on matter, whether or not admissible, that is of a type that reasonably may be relied upon. (Evid. Code, 801, subd. (b).) Dodd v. Cruz, 2014 Cal. App. LEXIS 118 (Cal. App. 2d Dist. Feb. 5, 2014). CHARGEMASTER 11 HCPCS CODES
12 Level I CPT codes from the AMA Level II Non-physician services, like ambulance, DME, prosthetics, injections Level III Local codes, obsolete CPT VS. ICD-9/10 CODES
13 What is a CPT code? CPT modifier CPT for Out patient care
What is ICD-9 (ICD-10)?
How do they Compare? IMPORTANT REFERENCES
14 201X HCPCS Level II 201X CPT Professional Edition 201X ICD-9-CM
USUAL AND CUSTOMARY 15 Context4 Healthcare Usual: Customary & Reasonable Fee database How does Usual and Customary compare to Reasonable Value
16 Howell Application Part C & D Medicare Pricing HOWELLS APPLICATION 17 Because Luttrell's liability to medical providers for their past medical services is limited to the amounts Medicare and Medi- Cal actually paid, Luttrell's recovery from Island Pacific for past medical services must be limited to those amounts actually paid. Luttrell v. Island Pacific Supermarkets, Inc. (2013) 215 Cal. App. 4th 196, 206. A, B, C, DS OF MEDICARE 18 Part A Inpatient Hospital, Hospice, Home Health and Skilled Nursing Facility (SNF) Part B MDs Misc Med Care Part C Medicare+Choice Medicare Advantage Medi-gap MAOs
Part D Rx Meds MEDICARE PART C & D 19 Paid by Medicare to provide benefits Avandia: Howell impact Same Pricing restrictions as Medicare Discovery: Obtain copies of front and back of health insurance cards. CMS Declaration Reimbursement to Plan MEDICARE PRICING 20 Databases that utilize Medicare pricing as starting point PFFS.com - Inexpensive source for physician Medicare pricing Medicare PCPRICER - Downloadable pricing program for Medicare hospital stays http://www.cms.gov/Medicare/Medicare-Fee- for-Service Payment/PCPricer/inpatient.html Acronyms Appearing in Federal Register (handout)
TREATMENT PROVIDED ON A LIEN BASIS
21 Recent increase in plaintiffs counsel sending INSURED patients to lien providers to avoid Howell limitation. How to respond?
GOAL 22 DEFENSE TO PRESENT EVIDENCE IN CASE-IN-CHIEF THAT PLAINTIFF HAD HEALTH INSURANCE BUT DID NOT USE IT RATIONALE: 23 Failure to Mitigate Damages the collateral source rule should not be employed to preclude the defense from putting on this key evidence - (see CACI 3930; Pool v. City of Oakland (1986) 42 C.3d 1051, 1066, holding, The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted.)
HOWELL & THE I WORD 24 Howell does not prohibit any mention of insurance - NB: risk of mistrial if prejudice outweighs value of evidence. (See Howell, headnote 5, citing Evidence Code Section 352) HOWELL & THE I WORD 25 Argument: grave prejudice by any ruling depriving defense of the right to put on evidence of failure to mitigate damages during its case in chief; post-trial evidence on this issue to reduce special damage awards is insufficient HOWELL & THE I WORD 26 Motion in Limine Positions: Collateral source rule should not prevail over defense right to put on affirmative defense of mitigation of damages. Plaintiff opened the door. Plaintiffs conduct was unreasonable HOWELL & THE I WORD 27 Post Trial Be prepared to make motion for new trial on the grounds of excessive damages (see Howell). Appeal
GATHERING EVIDENCE 28 GOAL OF DISCOVERY TO SET UP MOTIONS IN LIMINE Form Interrogatory 4.1: - was there in effect any insurance which you were or might be covered for examplemedical expense coverage. RFP: insurance policy, health insurance card RFA: that you had health insurance to cover GATHERING EVIDENCE 29 Subpoena: Health Insurer for policy Depositions: Plaintiff and of Lien based Provider - Use Medical Billing Expert to Prepare analysis of the reimbursement schedule for plaintiffs insurance plan for the care provided can prepare a UCR analysis - Ask whether the lien provider accepts whatever kind of insurance the plaintiff had which was not used (they almost always do) GATHERING EVIDENCE 30 MEET AND CONFER MOVE TO COMPEL Dodd v. Cruz (2014) Cal. App. LEXIS 118
KAISERS CONSOLIDATED STATEMENT 31 Is it incurred? Does is demonstrate a Reasonable Value? It is well known that Kaiser is an HMO providing medical services to its members rather than a medical service provider with a conventional creditor- debtor relationship to its patients. In re Eric S. (2010) 183 Cal. App. 4th 1560, 1565. 32 Kaiser is a CAPITATED PLAN Apart from the described records, however, the present record is entirely silent on this subject. We are therefore left with the uncontested recital in the quoted document that the victim was billed for the stated amount. In re K.F. (2009)173 Cal. App. 4th 655, 663- 664 33 The other document challenged by appellant is an Explanation of Benefits from Kaiser, apparently reflecting the value of ambulance service provided. It lists $ 582.32 in Ambulance Charges. It also describes this sum as the amount charged. But it bears the prominent legend, This is not a bill; it shows zeros in the column marked Coinsurance/Copayment; there is no entry in the column marked Amount Paid; and in the space marked Your Obligation appears the sum 0.00. In re K.F. (2009)173 Cal. App. 4th 655, 663-664 . 34 KAISER HAS 3 ENTITIES 35 Kaiser Permanente is an integrated managed care consortium. Kaiser Permanente is made up of three distinct groups of entities: 1. the Kaiser Foundation Health Plan and its regional operating subsidiaries; 2. Kaiser Foundation Hospitals; and 3. the autonomous regional Permanente Medical Groups. HOW PROVIDERS ARE PAID 36 KAISER PLAN LANGUAGE:
How Plan Providers are paid Health Plan and Plan Providers are independent contractors. Plan Providers are paid in a number of ways, such as salary, capitation, per diem rates, case rates, fee for service, and incentive payments.
To learn more about how Plan Physicians are paid to provide or arrange medical and hospital care for Members, please ask your Plan Physician or call our Member Service Contact Center. THE EXPERT ATTACK 37 How to get to the lesser of paid v. reasonable value. Using CHARGEMASTER to compare Reverse engineer from the chart notes Review Healthcare Recoveries bill Questions for Person Most Qualified (PMQ) California Charge Master website (attachment)
THE DEFENSE ATTACK 38 Motions in Limine Preclude Introduction of Evidence from Providers Preclude Use of Kaiser Statement of Services and Kaiser Consolidated Statement
THE MOTION 39 Plaintiffs Burden of Proof Statement is Hearsay Where invoices or accountings received from third parties are offered into evidence as proof of the transactions described, hearsay issues arise which may be resolved only by the testimony of a qualified witness. Jazayeri v. Mao (2009) 174 Cal. App. 4th 301, 325 THE MOTION 40 Statement is Hearsay may be admitted for the limited purpose of corroborating his testimony and if the charges were paid, the testimony and documents are evidence that the charges were reasonable. Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal. 2d 33, 42-43. THE DEFENSE ATTACK 41 Furthermore, the full amount billed by medical providers is not an accurate measure of the value of medical services because many patients pay discounted rates, and standard rates for a given service can vary tremendously, sometimes by a factor of five or more, from hospital to hospital in California. State Farm Mutual Automobile Ins. Co. v. Huff (2013) 216 Cal. App. 4th 1463, 1471 (citing Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 and Howell v. Hamilton Meats & Provisions (2011) 52 Cal. 4th 541).
THE DEFENSE ATTACK 42 Cannot demonstrate amount was incurred: In re K.F. (2009)173 Cal. App. 4th 655, 663-664. Cannot demonstrate Statement Reflects amount paid to providers: Use plan documents Take depositions
THE DEFENSE ATTACK 43 Assertion of Lien does not equal incurred amount Lien language of plan refers to Civil Code 3040 3040 has complex formula, the amount stated will be misleading to the jury
THE DEFENSE ATTACK 44 Violation of Collateral Source Rule
the evidentiary aspect of the collateral source rule makes any evidence of a collateral source payment inadmissible for the purpose of determining the amount of damages. This precludes evidence that an insurer, or another source independent of the tortfeasor, paid for the plaintiff's medical care, but does not preclude evidence of the amount that a medical provider, pursuant to prior agreement, accepted as full payment. Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308, 1327. THE DEFENSE ATTACK 45 DISCOVERY (use criminal restitution cases as guide) Form Rog 4.1 RFP: plan documents Depo: PMQ at Kaiser Facility Depo: Treating docs no knowledge of billing Expert: Use Billing expert THE DEFENSE ATTACK 46 DISCOVERY (use criminal restitution cases as guide) Expert: Use Billing expert If Plaintiff does not disclose, your motion is to preclude the entire set of charges.
ONE LAST THOUGHT 47 With the Affordable Care Act, everyone must have health insurance. Proving the Value of Present and Future Medical Bills Under Howell and Corenbaum : QUESTIONS? THANK YOU!
Home Health Services of The U. S., Inc., Etc. v. Richard S. Schweiker, Secretary of The Department of Health and Human Services, 683 F.2d 353, 11th Cir. (1982)
Humana of Aurora, Inc. D/B/A Aurora Community Hospital v. Margaret M. Heckler, Secretary of The Department of Health and Human Services, 753 F.2d 1579, 10th Cir. (1985)
49 Soc - Sec.rep - Ser. 796, Medicare & Medicaid Guide P 43,962 The New Jersey Hospital Association v. William Waldman, Velvet Miller, Leonard Fishman, 73 F.3d 509, 3rd Cir. (1995)
15 Soc - Sec.rep - Ser. 299, Medicare&medicaid Gu 35,900 Medical Fund-Philadelphia Geriatric Center v. Heckler, Margaret M., Secretary of Health and Human Services, 804 F.2d 33, 3rd Cir. (1986)
Donna Horvath, on Behalf of Herself and All Others Similarly Situated v. Keystone Health Plan East, Inc. Donna Horvath, on Behalf of Herself and the Proposed Class She Seeks to Represent, 333 F.3d 450, 3rd Cir. (2003)