How To Fight Discrimination In Managed Care

By Stephen Monaco, DPM

Nothing makes us more angry and frustrated than discrimination based on participation and reimbursement levels. One of the classic examples is when we perform a bunionectomy and get reimbursed at a lower rate than an MD or DO for doing the same procedure. Indeed, the cost-cutting measures and restrictive practices of insurers make discrimination an everyday reality in our practices. Often, insurers will take advantage of our ignorance of the law to improve their own profit margins. Are there any steps we can take to help ensure fair and equal payment for the services we provide to our patients? Yes, but the first step is to be cognizant of the various ways that discrimination can occur. • Restrictions on plan participation. You may encounter restriction by geographic location where a plan only allows one DPM per zip code. There may also be restriction based upon certification criteria. For example, some plans may only accept DPMs who are certified by the American Board of Podiatric Surgery or those who have had two years of residency training. • Limits on level of coverage. Perhaps you’ve been told by a plan that you’ll be reimbursed for forefoot surgery only or you may have seen certain codes with the phrase “are not paid when done by this type of provider.” • Limits on benefits for podiatric services. Often, plans will equate “podiatric services” with “routine foot care” and exclude the services. You may also encounter plans that only allow foot surgery to be performed by an orthopedic surgeon. • Different reimbursement levels for MDs or DOs for identical services. We’ve all seen examples of two fee schedules (one for podiatrists, one for orthopedists) for the same services. You may also notice that DPMs are on a “capitated” payment for a service whereas orthopedists are paid “fee for service” for the same procedure. • Inconsistent payment amounts. Tracking your EOBs, you may notice regular, inconsistent payments for the same code (service). Sometimes, procedures are not paid at the same time as other procedures or services you may have performed at the same visit. This may be the result of unfair unbundling software that doesn’t recognize certain modifiers. Some plans don’t recognize modifiers at all. Explore Your Paths Of Recourse So how does one get started in combating reimbursement discrimination? 1. Get educated on the laws and find the flaws. When looking at the laws and insurance codes, specifically look for language that addresses the right to select a practitioner, mandatory coverage (that would prohibit the exclusion of “podiatric services”), and equal reimbursement/payment for the same services. It’s also important to look carefully at how an insurer is defined in order to make sure that all types of insurers are included in the existing statute with regards to payment discrimination. Remember, you’re entitled to protection against discriminatory practices. Find out and compare fees between your MD and DO colleagues for the same services. Gather specific evidence of fee discrimination, plan participation discrimination and coverage discrimination. 2. Try going directly to the insurers. Approach them first to develop a mutual understanding of their responsibilities under the law. This is generally the best approach. Do this by initiating a meeting or series of meetings with insurers in the state to provide them with information. Use these meetings as opportunities to promote podiatry, emphasizing the cost-effectiveness of high quality podiatric foot care. Discuss this with the medical directors or other representatives of the insurance company first. Develop mutual understandings on discrimination concerns and how you think your practice has been affected by discrimination. 3. Go to the insurance regulators. This will vary by state. It could be the Attorney General or the Insurance Commissioner. Find out who has the power in your state and tailor your strategy accordingly before approaching him or her. Encourage these regulators to interpret and enforce the antidiscrimination statutes. However, be aware of the politics of the given situation. Forming alliances or coalitions can give you more clout. In Pennsylvania, we have formed an alliance of health care providers, including many different specialties. We meet monthly and share our lobbying efforts. Together, as a collective, we have clout on common issues and we are able to affect change as a result. 4. When all else fails, go to court. Obviously, this can get complicated, not to mention lengthy and expensive. Getting involved with the court system with lawsuits is difficult. There is controversy over self-funded ERISA plans and insured ERISA plans. The preemptions of nondiscrimination laws apply in these cases. In certain cases, participation nondiscrimination statutes are not preempted because this regulates the business of insurance and is not preempted by ERISA plans. Certainly, filing a lawsuit is your last option. Lobbying for change may be more cost-effective. Lobbying For Change There are several considerations to take into account when you’re trying to successfully lobby for a change. As I noted above, it helps to build or join up with a coalition or alliance that can put some political and/or financial clout behind your proposal. Timing is another key factor. It’s very important to gauge the existing political climate and know when it’s a good or bad time to introduce a particular proposal. Emphasize the public policy rationale. For example, when patients have more health care provider choices, it helps facilitate better care. Also keep in mind that picking the right legislators and politically important leaders and committee chairs will affect the success of your proposal. Weigh the pros and cons of trying to create a free-standing bill or tacking on an amendment to an existing bill that is likely to pass. The latter option is usually a good strategy, although free-standing legislation may allow more creativity and clear language. Why Language Is Essential To Your Proposal’s Success The language in the bill or the amendment is key to your success. Here are some pertinent pointers. • Agree on the objectives and to whom they will apply. • Ensure clear language. In other words, prevent it from being subject to interpretation. There may be existing language in some state laws that may be advantageous to have in your own state. Texas, Oklahoma and Colorado are good examples of states with some unambiguous codes in their insurance regulations. • Address potential concerns of your opponents without sacrificing your objectives. • Make sure it is enforceable. Common objectives of these proposals include: Specific language that prohibits discrimination against providers (including DPMs) who are similar to physicians (MD, DO) in education, service provided, and background (i.e. allopathic training); prohibiting discrimination based solely on license; and a mechanism for identifying violations and enforcing the law. In Conclusion Change is never easy and trying to create change through legislation is especially difficult. However, the APMA’s series of newsletters via its Health Systems Committee provides an excellent review of the aforementioned points and suggestions. I also encourage you to check out your state Web sites for the exact languages of current bills. These government Web sites usually provide a wealth of information that you can easily download for your review. Dr. Monaco is a member of the American College of Podiatric Medical Review. He is also a Fellow of the American College of Foot and Ankle Surgeons and a Diplomate of the American Board of Podiatric Surgery.

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