Healthcare Revenue Cycle

The Law Firm of Koth Gregory & Nieminski is uniquely situated to help hospitals, surgical centers, clinics, and medical groups increase revenue by obtaining the recovery they deserve on unpaid/underpaid accounts. We have provided legal services and process solutions for our healthcare clients since 1990. Over the past 27 years we have recovered over 100 million dollars for our healthcare clients. We encourage potential clients to take advantage of our experience and obtain their rightful recovery as well. There are many issues facing healthcare providers and professionals, such as denial/underpayment of out-of-network claims associated with group health plans, medicare advantage plans, and individual insurance policies through the marketplace, issues with contract payers and preferred provider/managed care agreements, litigation under the Employee Retirement Income Security Act (ERISA) and Patient Protection Affordable Care Act (PPACA), obtaining judgments and collecting on patient responsibility accounts (uninsured patient accounts or balance billing accounts), pursuing liens, and navigating the issues specific to workers’ compensation accounts. If your facility has unpaid/underpaid accounts, Koth Gregory & Nieminski is the solution. Our recovery percentage is high and our cost-to-recovery ratio is low. Call (309)828-5090 to take the first step towards obtaining the recovery your healthcare facility deserves.

Koth Gregory & Nieminski has a deep understanding of the needs of healthcare facilties due to our long-standing relationships with our healthcare clients. We provide a range of legal services, which includes but is not limited to litigating claims against non-contract payers under ERISA, PPACA, and Illinois state law, pursuing contract payers via alternative dispute resolution (i.e. arbitration), and negotiating settlements on both non-contract payer and contract payer accounts. Our extensive experience reviewing the most intricate insurance policies, group health plans, and preferred provider contracts helps us resolve these accounts for our clients effectively and efficiently. Our reputation in the healthcare industry allows us to obtain recovery on many unpaid/underpaid accounts by simply sending appeal letters to payers because they know if the account has been referred to our office, we will hold them accountable through litigation or arbitration if they do not make appropriate payment. We also assist our healthcare clients with patient responsibiilty accounts by sending demand letters, obtaining judgments/payment arrangements, and collecting on the judgments/payment arrangements.  When patients have an injury claim, we submit lien notices and file petitions to adjudicate our clients healthcare services liens. At Koth Gregory & Nieminski, we are always mindful of of the mission statement of our healthcare clients. We uphold the ideals and objectives of our clients in a professional manner and uphold the rights and dignity of their patients.

Insurance Companies and Employer Health Plans are currently attempting to avoid their medical coverage responsibilities by including a non-assignability provision in their insurance policies and health plans. A non-assignability provision includes language that is designed to prevent the insured from assigning his/her rights to medical benefits under his/her insurance policy or health plan to the healthcare facility that provided the medical services. The intent of the Insurance Companies and Employer Health Plans is to underpay claims and rely on their non-assignability provisions, thinking that healthcare facilities will not be able to sue for additional payment of the insured’s medical bills because the language they include in their non-assignability provisions allows the insured to receive payment/benefits and attempts to prohibit insureds from assigning this right to payment/benefits to the healthcare facility.

We recently obtained a favorable decision on this issue in OSF Healthcare System an Illinois not for profit corporation d/b/a Saint Francis Medical Centerv. NESTLE USA, Inc., Case No. 15 cv 1316. The United States District Court for the Central District of Illinois stated:

[T]he Court stands by its decision in OSF Healthcare System v. Boyd Benefits, CDIL Case No. 12-1413 (EFC No. 33 at 7-8) in that pursuant to Kennedy, “the possibility of direct payment is enough for a federal court’s jurisdiction,” thus an actual payment definitely suffices to enable a federal court to exercise jurisdiction. Therefore, “based on the record before it[,] the Court finds the allegations in the Complaint establish” a direct payment on behalf of the Health Plan to Plaintiff “that would vest this Court with subject-matter jurisdiction, notwithstanding an anti-assignment clause.” Also, Nestle’s Pennsylvania Chiropractic argument fails because as noted above Plaintiff is a beneficiary that has been designated by a participant, unlike the plaintiffs in Pennsylvania Chiropractic who did not rely on a valid assignment and instead relied on their contract with an insurer, which the Seventh Circuit held did not meet the definition of 1002(8). Pennsylvania Chiropractic, 802 F.3d at 928. In addition, Pennsylvania Chiropractic was a case in which the dispute concerned the amounts provders receive under their participating-provider contract, not any particular ERISA plan. Pennsylvania Chiropractic, 802 F.3d at 927.

This Court decision was particularly significant because it distinguished the Seventh Circuit Appellate Court decision on October 1, 2015 in Pennsylvania Chiropractic. That Seventh Circuit case was between a health plan and a healthcare provider that was not a client of Koth Gregory & Nieminski. The Court ruled in favor of the health plan, which prompted Nestle to argue that the Seventh Circuit’s decision should apply to their cases as well. We effectively argued the distinctions between that Seventh Circuit case and our cases before the Court against Nestle, and the Court agreed with our reasoning and re-affirmed its support of our legal theories regarding healthcare facilities’ beneficiary status.

Koth Gregory & Nieminski has obtained thousands of judgments and settlements for its healthcare clients over the past 25 years, resulting in over 100 million dollars in recovery. Below are a few of the notable Court decisions we have obtained over the years on some hotly contested issues.

The United States District Court for the Central District of Illinois agreed with Koth Gregory & Nieminski’s legal theories in OSF Healthcare System an Illinois not for profit corporation d/b/a Saint Francis Medical Center v. Contech Construction Products Inc. Group Comprehensive Health Care, Case No. 13 cv 01554, and the Court explained that:

[E]ven where the plan’s term prohibits assignment without its consent, the possibility of direct paymentí to the provider suffices to state a colorable claim.

This decision provided healthcare providers and professionals with beneficiary status under certain circumstances, which affords providers/professionals the ability to sue health plans and insurance companies for (1) copies of the documents related to the payers’ benefit determinations and (2) benefits/payment under the patients’ health plans.

The United States District Court for the Central District of Illinois also agreed with Koth Gregory & Nieminski’s legal theories in OSF Healthcare System an Illinois not for profit corporation d/b/a Saint Francis Medical Center v. Boyd Benefits, Case No. 12 cv 1413, wherein the Court stated that:

OSF received some payment from Boyd for the services it provided to the insured. The holding in Kennedy provides that “[t]he possibility of direct payment is enough” for a federal court’s jurisdiction, the actual payment would certainly suffice… based on the record before it the Court finds that the allegations in the Complaint establish enough possibility of direct payment by the Defendant’s plan that would vest this Court with subject-matter jurisdiction, notwithstanding an anti-assignment clause.

This decision confirmed the ability of healthcare providers and professionals to establish beneficiary status under certain circumstances, which affords providers/professionals the ability to sue health plans and insurance companies for (1) copies of the documents related the payers’ benefit determinations and (2) benefits/payment under their patients’ health plans.

An out-of-network claim governed by the Employee Retirement Income Security Act (ERISA) may include some or all of the following issues:

1. For health insurance coverage issues, if a healthcare provider or professional is considered a beneficiary, the provider/professional is entitled to appeal the health insurance benefit determination, request documents, and file suit. Under ERISA, 29 U.S.C. 1002(8), the term “beneficiary” means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder. However, insurance companies and health plans adamantly refuse to acknowledge healthcare providers and professionals as beneficiaries. As a result, providers/professionals are faced with the challenge of establishing their beneficiary status if the provider/professional wishes to dispute the denial/underpayment of a claim. At Koth Gregory & Nieminski, we know exactly what the courts are looking for to establish a provider/professional’s benefiicary status and we help our healthcare clients establish beneficiary status on a daily basis. 

2. Another issue arises when healthcare providers/professionals seek additional payment from the insurance company/health plan on claims the providers/professionals believe may have been underpaid. To effectively dispute an underpayment, providers/professionals must prove the benefit determination was “arbitrary and capricious”. This is often very difficult as many health plans contain language affording the plan administrator discretion to interpret the plan language. At Koth Gregory & Nieminski, we understand the complicated language contained in ERISA governed health plans and know how courts will consider plan language in determining whether benefit determinations are arbitrary and capricious. We have recovered over 100 million dollars for our clients at a very low cost-to-recovery ratio. Our experience allows us to predict the likelihood of recovery on underpaid claims in litigation and the courts have agreed with our arguments for additional payment on the numerous ERISA claims we have pursued on behalf of our healthcare clients.  

3. The enactment of the Patient Protections Affordable Care Act (PPACA) in 2014 afforded healthcare providers and professionals an avenue for increased recovery for out-of-network ERISA governed claims involving emregency services. Pursuant to 42 U.S.C.A. 300gg-19a(b)(1)(C)(II), if emergency services are provided out-of-network the cost-sharing requirement (expressed as a copayment amount or coinsurance rate) is the same requirement that would apply if such services were provided in-network. Koth Gregory & Nieminski consistently obtains additional benefits/payment for emergency admissions from insurance companies and health plans by effectively arguing the applicability of this provision. The difference between payment at the out-of-network benefit level versus the in-network benefit level can be astronomical, which is why healthcare providers and professionals need an experienced ERISA and PPACA litigation firm like Koth Gregory & Nieminski to guide them through the process and help them obtain the benefits/payments they deserve.

Insurance Companies and Employer Health Plans will continue their attempts to maximize their bottom line by collecting premiums and denying/underpaying claims. If you are a healthcare provider or professional in need of experienced legal assistance with out-of-network ERISA governed claims, call the Law Firm of Koth Gregory & Nieminski today to increase your recovery on claims and improve your revenue cycle.

Section 29 U.S.C. 1003(b) of the Employee Retirement Income Security Act (ERISA) specifically excludes governmental plans from coverage under ERISA. Per 29 U.S.C. 1002 (32), “the term ‘governmental plan’ means a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing. The term ‘governmental plan’ also includes any plan to which the Railroad Retirement Act of 1935, or 1937 applies, any plan of an international organization which is exempt from taxation under the provisions of the International Organizations Immunities Act, and any plan established and maintained by an Indian tribal government.”

Public school district plans and city/municipality plans are two of the most common examples of governmental plans that are not subject to the requirements of ERISA. Instead Illinois state law applies.

At Koth Gregory & Nieminski, we deal with these governmental plans daily. We know the nuances of Illinois state law in this area and how to obtain recovery for healthcare providers and professionals against these governmental plans for unpaid/underpaid claims.

Since the Patient Protections Affordable Care Act (PPACA) became effective in 2014, people are buying health insurance policies through the marketplace. These policies are governed by Illinois statutory and case law. Over the past 3 years, our firm has reviewed hundreds of these insurance policies. We understand the language conatined in these policies and the pertinent state laws that determine the rights of healthcare providers and professionals and the amount they will be paid under the policies.

One way that Koth Gregory & Nieminski obtains additional recovery for healthcare providers and professionals under these insurance policies is by filing suit for payment of out-of-network claims involving emregency services at the in-network benefit level under 215 ILCS 134/65 and 42 U.S.C.A. 300gg-19a(b)(1)(C)(II). Pursuant to 215 ILCS 134/65, “a health care plan that provides or that is required by law to provide coverage for emergency services shall provide coverage such that payment under this coverage is not dependent upon whether the services are performed by a plan or non-plan health care provider and without regard to prior authorization. This coverage shall be at the same benefit level as if the services or treatment had been rendered by the health care plan physician licenced to practice medicine in all its branches or health care provider.” Pursuant to 42 U.S.C.A. 300gg-19a(b)(1)(C)(II), “if emergency services are provided out-of-network the cost-sharing requirement (expressed as a copayment amount or coinsurance rate) is the same requirement that would apply if such services were provided in-network.”

Two laws that also apply to claims against insurance companies in Illinois state court are 215 ILCS 5/154.6 and 216 ILCS 5/154.5. These laws are appliacble when the insurance company engages in improper claims practices. Pursuant to 215 ILCS 5/154.6, “any of the following acts by a company, if committed without just cause and in violation of Section 154.5, constitutes an improper claims practice:… (d) Not attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear;… (h) Refusing to pay claims without conducting a reasonable investigation based on all available information;… (n) Failing in the case of the denial of a claim or the offer of a compromise settlement to promptly provide a reasonable and accurate explanation of the basis in the insurance policy or applicable law for such denial or compromise settlement.” Pursuant to 216 ILCS 5/154.5, “it is improper claims practice for any domestic, foreign or alien company transacting business in this State to commit any of the acts contained in Section 154.6 if: (a) it is committed knowingly in violation of this Act or any rules promulgated hereunder; or (b) it has been committed with such frequency to indicate a persistent tendency to engage in that type of conduct.”

At Koth Gregory & Nieminski, we hold insurance companies accountable for their failures to make appropriate payment on claims and exercise proper claims practices.

An in-network claim against a contract payer may include some or all of the following issues:

1. Many of the contracts (aka Preferred Provider Agreements) between insurance companies and healthcare providers/professional contain short timeframes, which do not afford providers/professionals an adequate amount of time to appeal payment disputes or respond to requests for additional information/documentation by the contract payers. In addition, many of these contracts reference outside documents such as Provider Manuals or an Administrative Guides, which the contract payers draft and may change at their discretion. This may cause providers/professionals even greater issues with meeting timeframe requirements because the outside documents often have timeframes that are even shorter than the timeframes provided in the contract. Sometimes these timeframes are virtually impossible for to comply with given the amount of denials/requests for additional information/documentation providers/professionals receive on a daily basis.

2. Another issue is the unequal bargaining power between insurance companies and healthcare providers/professionals. These contracts and outside documents are strategically drafted by the insurance companies to provide them the ability to avoid payment on claims for numerous non-substantive reasons.

3. There is a growing issue with contract payers refusing to process claims until they receive additional information/documentation from the member. Their requests for additional information/documentation are typically for updated coordination of benefits information or the completion of forms regarding whether the date(s) of service were related to employment or an accident, for which there may be worker’s compensation or third party liability. The information/documentation is requested from the member and yet the providers/professionals get caught trying to facilitate the member’s cooperation with these requests. Many times the information/documentation is more easily obtained by the contract payer than the provider/professionals and some requests are not even relevant, but are simply made to prolong the payment of claims in hopes that the providers/professionals will fail to abide by procedural requirements so the payer can deny the claims on that basis.

4. Contract payers also like to negotiate discounts under their preferred provider agreements with providers/professionals, but then not honor those discounts. Instead, contract payers attempt to apply the discount and then also dispute the providers/professionals’ billing procedures. So they pay the contract rates, but only for the charges they deem to have been billed in accordance with various billing guidelines they unilaterally deem to be appropriate.

5. Contract payers also attempt to deny some claims based on medical necessity. They often claim the procedure or supplies provided to the patient were either experimental, not needed, or there was an alternative treatment method that was less expensive.

Koth Gregory & Nieminski has decades of experience dealing with the largest insurance companies in the country. We understand healthcare providers/professionals’ desire for an amicable working relationship with their contract payers. However, arbitration and other alternative dispute resolution options are sometimes necessary. We hold payers accountable for what they owe providers/professionals by arbitrating cases through the American Arbitration Association (AAA). We are mindful of the goals of providers/professionals to maximize their opportunity to recover what they are owed under their preferred provider agreements while resolving claim disputes in a professional manner and fostering the relationship between the parties.

In 2015 the federal government subsidized its funding of medicare to private health insurance carriers. Medicare Advantage Plans, sometimes called “Part C” or “MA Plans”, are a type of Medicare health plan offered by a private company that contracts with Medicare to provide patients with all Medicare Part A (Hospital Insurance) and Medicare Part B (Medical Insurance) benefits. Medicare Advantage Plans include Health Maintenance Organizations, Preferred Provider Organizations, Private Fee-for-Service Plans, Special Needs Plans, and Medicare Medical Savings Account Plans. If patients join a Medicare Advantage Plan, they still have Medicare. However, healthcare providers/professionals are paid from the Medicare Advantage Plan and not Original Medicare. Medicare pays a fixed amount for patient care each month to the companies offering Medicare Advantage Plans.

These companies must follow rules set by Medicare. However, each Medicare Advantage Plan can charge different out-of-pocket costs and have different rules for how you get services (like whether you need a referral to see a specialist or if you have to go to only doctors, facilities, or suppliers that belong to the plan for non-emergency or non-urgent care). The problem is private insurance companies are taking advantage of this ability to establish these aspects of coverage. The fact that they can change these rules each year allows them to stay one step ahead of most healthcare providers/professionals because just as providers/professionals develop processes and train personnel to follow the procedural rules for these Medicare Advantage Plans, the insurance companies change the rules.

One of the most challenging aspects of recovering payment from the private insurance companies for these medicare advantage plans is that the amount of denials are so numerous that the majority of providers/professionals cannot logistically appeal the denials within the required timeframes. The insurance companies hide behind the procedural timeframe requirements and deny coverage on that basis even if the original denial had no legitimate basis.

In order to effectively combat the tactics by these private insurance companies, providers/professionals must first determine whether a contract applies (there are two ways a contract may apply, which is addressed in detail in the Koth Gregory & Nieminski Medicare Advantage Plan Manual). Then the hospital bears the burden of appealing multiple times throughout the denial and appeal process just to preserve its right to benefits under the plan. Call our office at 309-828-5090 for more information about the specific appeal and denial timeframes and our recommended course of action for dealing with Medicare Advantage Plans.

Pursuant to section 770 ILCS 23/10 of the Healthcare Services Lien Act, “Every health care professional and health care provider that renders any service in the treatment, care, or maintenance of an injured person, except services rendered under the provisions of the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, shall have a lien upon all claims and causes of action of the injured person for the amount of the health care professional’s or health care provider’s reasonable charges up to the date of payment of damages to the injured person.”

At Koth Gregory & Nieminski, we do all of the following for our healthcare clients:

• Draft lien notices
• Follow the progression of injury claims for which we have filed a lien,
• Negotiate liens
• Enforce providersí lien rights
• File and/or respond to Petitions to Adjudicate Lien

One scenario that has been hotly contested in this area of law is if the healthcare provider/professional attempts to enforce its lien rights when the patient has Medicaid or Medicare. Many have argued that the provider/professional should seek recovery from Medicaid or Medicare in this scenario. However, our firm successfully argued that Medicaid/Medicare is a payer of last resort and providers/professionals can assert and enforce their liens and not bill Medicaid or Medicare. We originally won this issue at the trial court level. The opposing party appealed and we won the issue on appeal as well. Thus, when the patient has Medicaid or Medicare, providers/professionals have the ability to choose whether they wish to pursue recovery under the Healthcare Services Lien Act or bill the Department of Public Aid.

Patient accounts that may have been due to a work-related injury typically involve working with health insurance companies, employers, and the Worker’s Compensation Commission. The patient’s insurance company will usually deny the claim if there is a possibility that the patient’s visit to the healthcare facility was the result of a work-related injury. One common issue with these types of claims is preserving the healthcare provider/professional’s right to pursue the patient’s insurance company if the worker’s compensation claim is denied (determined by the Worker’s Compensation Commission to be not related to a work injury) or the claim is settled, but “disputed” with respect to the medical bills. At Koth Gregory & Nieminski, we submit appeals to the health insurance company, disputing their decision on behalf of the healthcare provider/professional, to preserve the provider/professional’s right to payment. Then if the worker’s compensation claim is denied, the provider/professional may still have a viable claim against the health insurance company.

Another issue is enforcing court orders and agreements to pay after a favorable decision by the Worker’s Compensation Commission. Often times payment is not made in accordance with the payment agreement or the Medical Fee Schedule as described in 820 ILCS 305 8.2 of the Illinois Worker’s Compensation Act. Our firm monitors the status of worker’s compensation claims and takes the necessary actions to protect the rights of healthcare providers/professionals to receive appropriate payment.

At Koth Gregory & Nieminski, we are always mindful of the mission statement of our healthcare clients. We uphold the ideals and objectives of our clients in a professional manner and uphold the rights and dignity of their patients.

At Koth Gregory & Nieminski, we do all of the following for our healthcare clients:

• Send demand letters and notices in compliance with the Fair Debt Collection Practices Act (FDCPA);
• Locate and serve patients with complaints for payments;
• Assist with the financial assistance process;
• Obtain judgments;
• Establish payment arrangements;
• Collect on judgments as authorized by our clients via wage deductions, non-wage (bank) garnishments, etc.

Many healthcare providers have nursing programs and other healthcare education programs, which they provide to those hoping to make a career in the healthcare field. However, when promissory notes and advancements on tuition are not repaid it may be necessary for hospitals to pursue reimbursement from the students for tuition, fees, etc.

At Koth Gregory & Nieminski, we help hospitals obtain reimbursement from their students by sending demand letters, locating and serving patients with complaints for payments, obtaining judgments, establishing payment arrangements, and/or collecting on judgments as authorized by our clients via wage deductions, non-wage (bank) garnishments, etc.

Koth Gregory & Nieminski has developed a line of products (protocol solutions) that can dramatically increase recovery by streamlining the denial and appeal process with insurance carriers so that healthcare providers/professionals systematically meet the deadlines articulated in group health plans, insurance policies, preferred provider contracts, and medicare advantage plans. Please call (309)828-5090 to inquire about our products.