California ruling

[Guest guest]

Just got this from my billing company and if I read it right it had huge

implications for us all.

Sandi Pomeroy, PT

Pomeroy Therapeutics

Dayton, Ohio

Vol. I, No. 15 - November 21, 2008

Legal Advocacy - Balance Billing/Fair Payment - DMHC Regulation Lawsuit

CAL/ACEP is one of six plaintiffs who filed suit against the Department of

Managed Health Care to overturn their regulations which declare balance

billing an unfair billing practice. Those regulations went into effect on

October 15th.

Yesterday afternoon, the Superior Court Judge issue a tentative ruling based

solely on the briefs filed by the parties. The judge ruled against us and

found that the DMHC did have the authority to promulgate the regulations

defining balance billing as an unfair payment pattern. The tentative ruling

is attached.

This morning, the court heard oral arguments from both sides. At the

hearing, our coalition's attorneys argued that the DMHC lacks the authority

to pass or enforce the regulation. The DMHC argued it does have the

authority to pass the regulation, and indicated that it will take

enforcement actions against providers who 'balance bill' patients. Our

counsel believes that even if the court ultimately decides that the DMHC can

define balance billing as an unfair billing pattern, the DMHC lacks the

authority to prohibit balance billing and to take enforcement actions

against those non-contacting providers who balance bill patients.

The court took the case under submission, meaning that the tentative

decision issued yesterday is not final and the judge may modify his

decision. He has 90 days to issue his final ruling. If the judge maintains

this opinion in his final ruling, the coalition plans to appeal and take any

other action possible to bar the DMHC from taking enforcement action based

on the regulation.

The tentative ruling was issued during yesterday's CAL/ACEP Board meeting,

and the Board immediately changed the agenda to begin discussing solutions

to this new crisis. A conference call of the reimbursement and billing

subcommittees has been set for Tuesday to develop a strategy to curtail

HMOs/RBOs from unilaterally reducing payments and to develop mechanisms to

aggregate data of the consequences of the DMHC regulations on patient care.

Additionally, the CAL/ACEP Board has drafted an overall strategic plan that

calls for lawsuits against HMOs/RBOs that make low-ball payments, working

with CMA and others on a public relations campaign, and a legislative

strategy. Be assured that we are working hard to explore all options

available to stem this crisis.

We will continue to keep you posted on this case, as well as on future

action items on this critical issue for emergency medicine and for emergency

care for California's patients.

You can also find the documents filed by the parties to the lawsuit on the

CAL/ACEP website. You will find all the documents on the Advocacy webpage

under " legal advocacy " . http://www.calacep.org/anf/legal/index.php