Category: Daily News

An $87,500 bill for a 20-minute knee procedure is just an extreme example of high amounts that insurers are billed by out-of-network surgery centers, experts say. Insurers are starting to fight back.

A Southern California surgery center charged a Long Beach Unified School District teacher $87,500 for a routine, 20-minute knee operation that normally costs about $3,000. According to the report in the Los Angeles Times, despite the huge markup, the Long Beach Unified School District and its insurer, Blue Shield of California, paid virtually all of the bill from Advanced Surgical Partners in Costa Mesa. Blue Shield mailed the $84,800 check to the high school Spanish teacher last month and told her to sign it over to the surgery center.

This case points to a growing battle nationwide over billing by outpatient surgery centers. Industry experts say some of these surgery centers seek out well-insured patients, sometimes by waiving their copays and deductibles, and then bill their insurers exorbitant amounts for out-of-network care. All too often, critics say, insurers pay these large sums and then cite high medical bills for why insurance premiums keep rising for businesses and consumers.

In response to questions from The Times, Blue Shield defended its $84,800 payment as proper. Advanced Surgical Partners, through its lawyer, said the bill was excessive. Amid the scrutiny, the two sides agreed to a lower amount this week. Henry Fenton, an attorney for the surgery center, said this bill “was excessive and not correct. I’m sure they will be more careful in the future.” Blue Shield said its typical rate for this arthroscopic knee procedure in Southern California is about $3,000 among in-network providers.

“This surgery center is charging 30 times the average by remaining out of network to advance this outrageous and anti-consumer practice,” said Blue Shield spokesman Steve Shivinsky. “This is a national problem.” Yet the company said it was obligated to pay nearly all of Advanced Surgical’s bill because it is bound by the health plan rules set by the teacher’s employer, the Long Beach school district. The school system is self-insured, meaning it pays its own medical bills and uses Blue Shield to administer its benefits and process claims.

In other situations involving out-of-network care, it’s common for insurers to pay only about 60% of what’s deemed to be “usual and customary” charges or some percentage of Medicare rates. Insurers and out-of-network medical providers routinely spar over what constitutes a reasonable amount. Kominski, a UCLA professor, said he faulted both Blue Shield and the school district for “dropping the ball on this. There were lots of opportunities for red flags to go off on such an outlandish bill.”

Nationwide, some insurers have begun to challenge these bills from outpatient centers. Last year, a unit of insurance giant Aetna Inc. sued several surgery centers in Northern California and accused them of overbilling the insurer more than $20 million. It has pursued similar actions against providers in New Jersey and Texas. Other insurers such as UnitedHealth Group Inc. have filed similar suits in California.

In one instance, Aetna said, a California surgery center charged $73,536 for a kidney stone procedure when the average in-network charge was $7,612. Aetna said it paid some of these bills before disputing them in court.

Doctors and surgery centers say the criticism is unjustified. Surgery centers say they have helped reduce healthcare costs by offering convenient care at a fraction of what hospitals charge for colonoscopies, cataract surgeries and other outpatient procedures. These facilities now handle up to 40% of all outpatient surgeries, according to the Ambulatory Surgery Center Assn.

A San Leandro medical center has been shut down and one of its doctors is facing criminal charges. Authorities say they investigated the As Soon As Possible (ASAP) Medical Clinic for two years. The facility employed Dr. Sultan Said Hamid as well as acupuncturists and chiropractors. It primarily handled worker compensation and automobile accident patients.

According to the story in the San Leandro Patch, Alameda County District Attorney Nancy O’Malley, along with California Insurance Commissioner David Jones, announced they have filed a civil action against the As Soon As Possible Medical Center. Authorities have closed the center at 1460 150th Ave. as well as its other clinics in Hayward, Vacaville and Fairfield.

Officials say they have also filed a criminal complaint against Dr. Sultan Said Hamid. The charges accuse Hamid of insurance fraud, perjury, filing false documents and conspiracy to dispense prescription drugs and other controlled substances by non-authorized personnel. Assistant District Attorney Larry Blazer said Hamid was dispensing drugs such as muscle relaxtants, anti-inflammatory agents and creams to patients who did not need them. “It seems everyone who walked in there walked out with two, three or four of these things,” said Blazer.The main purpose for the fraud, Blazer said, was to drive up insurance payments.

Hamid’s attorney, Ivan Golde, said Thursday his 75-year-old client is making arrangements to pay $100,000 bail. He expected it would be weeks before Hamid is arraigned. Golde said he hadn’t seen all the evidence yet, but he felt the case was not a criminal matter. If anything, he said, it is something for a medical board to investigate. Golde said he doubts there are any patients who are claiming they were harmed. He said the case centers on undercover officers going into the clinic and posing as patients. “Is that what we want law enforcement in Alameda County doing?,” he asked.

Authorities also filed a civil complaint against the clinic and its co-owner, Thomas Vamvouris. Vamvouris set up the corporation in 2004 with himself as a 49 percent owner and Hamid as a 51 percent owner. In reality, Barnes said, Vamvouris was the majority owner and that violates California law requiring a medical professional to be the primary owner of a medical facility. Authorities say Vamvouris has agreed to pay $450,000 in penalties, costs and restitution. He will also be prohibited from owning this type of facility in the future. No criminal charges are pending against Vamvouris.

Vamvouris’ attorney, Daniel Horowitz. said his client agreed to pay the $450,000 in penalties because he believed there was some “gray area” in the situation at the medical clinic and the payment was a compromise to settle the case. Horowitz said Vamvouris also had no knowledge of any of the illegal activities Hamid is accused of engaging in.”He was running the business side of things,” said Horowitz.

Taking umbrage at Texas Gov. Rick Perry’s campaign to lure California businesses, the Sacramento Bee swiped at Texas in an editorial stating that among its shortcomings, Texas is last in workers’ compensation coverage.

The radio ad by the Texas governor said “Building a business is tough, but I hear building a business in California is next to impossible,” the Republican governor says in the ad. “This is Texas Gov. Rick Perry, and I have a message for California businesses: Come check out Texas.”

And the Sacramento Bee editorial responded by saying “Yes, come check out Texas. Check out a state that ranks dead last in the percent of its population with high school diplomas. Come check out a state that is last in mental health expenditures and workers’ compensation coverage. Come check out a state that ranks first in the number of executions, first in the number of uninsured, first in the amount of carbon dioxide emitted and first in the amount of toxic chemicals released into water.”

Fact checkers soon joined the battle.

Stuart Leavenworth, who edits the Bee’s editorial page, offered as a basis for this claim a February 2011 report, “Texas on the Brink,” issued by a Texas House caucus called the Legislative Study Group. The basis for the report’s ranking on “workers’ compensation coverage” was 2006 data on the percentage of workers covered in each state that came from the National Academy of Social Insurance, a Washington, D.C., nonprofit group that researches such issues.

And herein lies an important anomaly: Texas is the only state that does not require all employers to obtain workers’ compensation coverage. Experts we consulted agreed this is the reason why Texas consistently ranks last and well behind other states in the proportion of workers covered.

There are exceptions; the National Federation of Independent Business says in an online comparison of such state laws that those include government construction contracts. In those cases, workers can file compensation claims, a right that employees usually give up in workers’ compensation agreements, “if they think they have a genuine case and the employer is still refusing to pay monetary benefits,” the summary says. And other states exempt certain employers.

The academy’s most recent data on the percentage of workers covered in each state comes from 2010. As charted in an August 2012 report, it shows that while Texas had 78.6 percent of workers covered, no other state had less than 94.9 percent covered. Thirteen states — including California — had 100 percent covered.

Jennifer Wolf, executive director of an association representing state and provincial workers’ compensation systems in the U.S. and Canada, said there can be “quite a bit of difference” between states, especially “when you are comparing different types of benefits (temporary, permanent partial, permanent total).” Wolf’s group, the International Association of Industrial Accident Boards and Commissions, is based in Madison, Wis.

Wolf and Amy Lee, a Texas Department of Insurance expert on workers’ compensation at the Texas Department of Insurance said that most states’ systems have gradually come into line with a set of federal recommendations issued in 1972. Wolf said the most recent check on compliance with those guidelines was a Jan. 1, 2004, report from a branch of the U.S. Department of Labor. States averaged compliance with 12.83 of the 19 recommendations, the report said; Texas’ compliance was slightly below average, at 12.5.

On September 21, 2011, the Appeals Board initiated an action against lien hearing representative Daniel Escamilla citing 11 cases in which Mr. Escamilla was sanctioned for misconduct, which demonstrated a pattern of behavior with no attempt to reform. Several of the example cases reflect sanctions for verifying and filing a frivolous petitions for reconsideration that were totally without merit.

Workers’ compensation administrative law judge (WCJ) David Hettick was appointed to act on behalf of the Appeals Board as the hearing officer to conduct prehearing conferences and take testimony. There were five prehearing conferences and on June 5, 2012, WCJ Hettick conducted an evidentiary hearing at which Mr. Escamilla testified, documentary evidence was introduced and witness declarations were submitted. At Mr. Escamilla’s request, a second hearing took place on September 24, 2012, before the Commissioners of the Workers’ Compensation Appeals Board sitting en banc. Despite the fact that Mr. Escamilla did not comply with orders regarding the timing of his submission of evidentiary exhibits and witness declarations. Because of the seriousness of these proceedings, the WCAB considered all of the exhibits and declarations offered by Mr. Escamilla. These documents include pleadings filed by Mr. Escamilla in the underlying cases in which sanctions were ordered, as well as the declarations of Michael Smalley, David M. Bautista, Lori Milas, Nathan Deschnes, David E. Bresler, Thomas Hewko, and Edward Wood.

The authority for a nonattorney representative to appear in workers’ compensation proceedings is conferred by section 5700, which states that a party may be represented “by attorney…or by any other agent…” and by section 5501, which states that an application may be filed by an applicant’s “attorney….or other representative authorized in writing.” As explained by the Supreme Court, the rationale for allowing lay representation of litigants in WCAB proceedings was “that numerous claimants for compensation are indigent and their claims are of such character and the compensation allowed by the Commission is so small as not to justify the engagement or service of a member of the bar, and that without the right to have a lay representative the claimant would ofttimes be unrepresented.” (Eagle Indem. Co. v. Industrial Acc. Com. (Hernandez) (1933) 217 Cal. 244, 249.) However, the Court also recognized that the use of lay representatives could result “in inexperienced and inexpert advice and assistance to a deserving claimant to the latter’s detriment.”

The Appeals Board is vested with the power under section 4907 to remove, deny, or suspend the privilege of a nonattorney hearing representative appearing before the WCAB after a hearing for “good cause.” Given hearing representatives’ lack of legal education and training, and given that they are not held to the same standard of care as licensed attorneys for purposes of malpractice or breach of fiduciary duty section 4907 is an important bulwark for protection of the public and the WCAB adjudicatory system. “Good cause” is a term that frequently appears in statutes and contracts and dozens of California cases have expounded upon its meaning. “Good cause” essentially connotes “a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” Good cause means “real circumstances, substantial reasons, objective conditions, palpable forces that operate to produce correlative results, adequate excuses that will bear the test of reason, just grounds for action, and always the element of good faith.”

Based upon the above, the WCAB in the case of In Re Daniel Escamilla (En Banc) concluded that “Mr. Escamilla has repeatedly violated our regulations, misrepresented facts either intentionally or with reckless disregard for the truth, filed frivolous petitions and engaged in other sanctionable conduct in violation of section 5813 and WCAB Rule 10561. He has been warned about and sanctioned for his behavior repeatedly. In two of the cases cited in the NOH, Mr. Escamilla was sanctioned the maximum amount of $2,500 and in one case he was ordered to pay fees and costs to opposing counsel in excess of $44,000.”

“Mr. Escamilla’s conduct has wasted valuable court time, delayed proceedings, burdened the Appeals Board with frivolous petitions, inconvenienced other parties and exposed his clients to monetary sanctions. Even though Mr. Escamilla has been sanctioned repeatedly, he persists in engaging in a pattern of conduct which evidences no intent to reform. Thus it is apparent that sanctions are ineffective and consequently we exercise our authority under section 4907.”

The WCAB ordered that Mr. Escamilla be suspended from appearing before the Workers’ Compensation Appeals Board as a hearing representative on behalf of any party or lien claimant for a period of 90 days. During this time Mr. Escamilla is prohibited from performing any acts in furtherance of representation of clients before the WCAB including, but not limited to, drafting and/or filing pleadings or other documents before the WCAB, negotiating and settling claims relating to workers’ compensation proceedings, appearing at depositions, appearing at WCAB hearings, and engaging in discovery or responding to discovery requests. This suspension will commence 45 days after the date of the filing of this order.

The Division of Workers’ Compensation has posted an updated fact sheet for injured workers online which provides answers to questions about permanent disability indemnity. The division is providing a grace period until March 18, 2013 to use the revised fact sheet as required for issuance of benefit notices. Only the text of the fact sheet is required for compliance. Specific changes to the fact sheet: include:

• Information is provided to confirm the claims administrator for an employer
• The potential modification of the PD rating in accordance with Labor Code §4658(d) is clarified as applicable to injuries occurring prior to Jan. 1, 2013. PD for injuries occurring on or after Jan. 1, 2013 will be increased by a Whole Person Impairment factor of 1.4%. 
• There is an explanation for the basis for delaying the payment of PD in accordance with Labor Code §4650(b)(2).
• Information is provided about the Department of Industrial Relation’s Special Earnings Loss Supplement Program for workers who feel that they are not adequately compensated for their earnings loss.

DWC has also received questions about the effect of SB 863 on the current benefit notice requirements, particularly as to the requirement to pay permanent disability before an award is issued.

The Division is in the process of significantly redrafting the benefit notice regulations to incorporate the changes required by SB 863 and streamline the current notice requirements.

The current notice requirements remain in effect until the updated regulations are adopted. However, a claims administrator could include an explanation of Labor Code section 4650(b)(2) in the initial Permanent and Stationary with PD notice required by Title 8, California Code of Regulations, section 9812(g)(2) to explain if PD benefits will not be paid to the injured worker.

The benefit notice regulations prescribe the required content of each notice. The sample benefit notices set forth in the benefit notice manual contain suggested language for complying with the benefit notice regulations. Unless specific notice language is required by a Labor Code section or a DWC regulation, a claims administrator can rephrase the notice language in the model notices so long as the content required by the regulations is accurately given.