The Road to External Review – Webinar Transcription
Denise Wilson 0:05
Hi, everyone, welcome to our Wednesday webinar. This is Association for Healthcare Denial and Appeal Management. I’m Denise Wilson, I’m going to be your host and one of your presenters for today. And today, we’re going to talk about the Road to External Review. So it’s something that I’ve been hearing a lot about from folks that I’ve talked about in the industry, about the opportunity to take particular denial cases to what we call external review. And I have Bill Haynes with me today. And he’s going to help us understand a little bit about what we mean about external by saying external review, what does that mean, what some of the terminology that goes into some of the rules and regulations around that.
To do first. If you are new to go to webinars, you should have a control panel, that’s that box on my screen. To my right, I think it should be to your right as well. And under that box, you have some drop down options that are in gray, and one of them is has handouts. And if you open that drop down under handouts, you should be able to download the slide set for today. If you’re having trouble getting it downloaded, you can enter let us know in the questions area, I have AJ Hall helping us today on the operational side of things and he has some tips for you, if you’re having trouble downloading the slides.
I know some hospitals, if you’re listening from your hospital, sometimes there’s a firewall that will not allow you to download slides, you know from from a website so that that could be the problem. We will this is being recorded and we will post the slides when we post the recording to our website in about a week or so. Okay. We are offering free CEUs if you are an AHDAM member, okay, so you have to be an AHDAM member as of today, which is July 14, in order to get the use for attending this live session, so you have to attend the live session and you have to be on for at least at the minute.
And I count that through the reports that come out of our GoToWebinar system. So I checked to see that you were on for at least 15 minutes to get the CEU. We also have a survey that pops up at the end. You do have to complete that survey in order to get the CEUs. Okay, so make sure you do that.
The certificates will be emailed to you I usually get them out within about a week. Again, I have to check. Are you an AHDAM member? Did you stay on for 50 minutes? Did you do the survey. The ease are not available if you watch the recording of the live webinar. And as a disclosure, there are no individuals in a position to control content for this activity that have any relevant financial relationships to declare.
Okay, so when that survey pops up for the CEUs, it will pop up for you automatically. Once I end the webinar. I think it pops up as well if you leave a little bit early. We have CEUs from actors from Nari for CCMC for our case managers from a HEMA for you folks who belong to that organization, and then also from the American Nurses Credentialing Center.
The nursing continuing professional development activity was approved by the Northeast multi state Division Education Unit, which is an accredited provider. I’m sorry, approver of ANCC Commission on Accreditation, you can select as many CEUs as you’d like. So if you belong to two or three of these organizations, feel free to select those. Our next webinar we’re going to do on September 15. At 2pm. On another Wednesday, we try to keep them on Wednesdays at 2pm. We’re going to talk about holding players accountable, which is one of your first lines of defense in denial management.
If you don’t understand the rules of the game and what your payers are allowed to do and not allowed to do it makes it much more difficult to be successful or not as successful as you could be. You can be more successful if you understand what the rules are. Okay, so you can go to our website right now and register for that www.AHDAM.org and registrations open for that webinar. A little bit about us. We are the nation’s only association dedicated to healthcare denial and appeal management. And our mission is to support and promote professionals who are working in the field We do that through education and collaboration. And our vision is to create an even playing field where patients and healthcare providers are successful in persuading medical insurers to make proper payment decisions.
A little bit about me I’m Senior Vice President and Denial Research Group also known as AppealMasters. I’m also president at AHDAM. I’ve been in healthcare my entire adult career since 1983. I’ve been in clinical management, education, compliance and been doing appeal writing for about 17 almost 17 years now. I personally manage hundreds of Medicare managed Medicare commercial appeal cases I’ve presented hundreds of cases as an administrative law judge level. I speak on an on denials and appeals and educate on appeals processes and payer behaviors and standards of care and everything else that you need to know to be successful appeal writer or other presenter today.
Very excited to have Bill Haynes with us today. He serves as the managing attorney for Denial Research Group AppealMasters. He’s a member in good standing of the Maryland Bar, a member of the Association of Healthcare Denial to Management and member of the American Health Law Association. They’ll have experience in healthcare law, including managed care contract analysis, payer provider arbitrations and independent review processes. Bill personally manages a team of attorneys who do legal research answer legal questions and draft language for Medicare, managed Medicare, Medicaid and commercial appeal cases independent reviews and arbitrations.
Okay, a disclaimer that I need to read before we get started. The Association for Healthcare Denial and Appeal Management publishes and distributes materials on its website that are created by our members, or invited industry subject matter experts for the benefit of all our members, AHDAM does not certify the accuracy or authority of these materials. These materials are distributed presented as research information to be used by other members in conjunction with other research deemed necessary in the exercise of our members independent professional judgment. AHDAM claims no liability in relation to reliance on the content of these materials.
The views expressed in the materials or the use of the materials authors do not necessarily represent the views of AHDAM and any references are provided for informational purposes only and do not constitute endorsement of any sources. There are no conflicts of interest to declare for any individual in a position to control the content of this presentation.
Okay, so let’s get on with our learner outcomes. And then let’s get into the material. So at the end of the presentation, today, the learner should be able to determine whether any particular denying claim has the option of being filed to external review. So we want to help you understand what claims can go to external review and which ones may not be able to go to external review.
Identify the primary state and primary federal organizations that describe the steps for taking an appeal to external review so that you can do the research in your state and understand how that operates for your facility. Explain how to research state external review process in your own state.
Okay, so the appeals process is defined by the payer typically. Okay, so we’re talking about when we’re talking about traditional Medicare, I think most of you are all of you know, there’s a five level appeal process that’s, that’s allowed for providers, and for patients, when you have a denial from a traditional Medicare claim for commercial payers.
And when I say commercial, I’m talking about everything that it’s not traditional Medicare pay, so that includes managed Medicare. Your appeals process is really dependent on the contract that you might have with that commercial payer. So if you have a contract with a payer, then your appeals process is defined in that contract, or it’s defined in the provider manual, the contract may just say that they follow whatever is published in the provider manual. If you have no contract with that payer, and it’s a commercial payer, then it falls back to what those payer policies are per state regulations. When it comes to management of care, if you have no contract, there’s payer, it may fall back to the payer policies if there’s payer policies that are offered, or you have the five level appeal process just like you would for traditional Medicare if you’re not contracted with management of care.
Okay, so let’s talk about the difference. between internal appeals and external review. So an internal appeal when we talk about internal appeals, those are filed back to the insurance carrier or the payee or payer, whoever originally denied the claim. Now, there may be times when your first level of appeal is going to go back to a third party auditor, that that commercial payer has a contract with or has hired to do some auditing services. And we see that quite a bit.
Or commercial payers may have hired a company like creativity to do some auditing. And that auditor has denied the claim. And so your first appeal actually goes back to captivity, instead of going back to let’s say, Blue Cross and Blue Shield. But for the most part, you’re filing back to the insurance carrier. So that’s an internal appeal. Payers may allow more than one level of internal appeals, I may have one level, so I may have to levels, we have dealt with some insurances where they’ve hired a third party auditor and that third party auditor allows three or four appeals back to them, before you even appeal back to the to the post insurance carrier like Blue Cross Blue Shield or Humana or whatever. So, you know, some of the number of internal appeals can vary.
And then some states may allow the option for the provider or the patient to appear in person at a second level of internal appeal. Okay, most of the time, I believe it’s probably in violet as a written appeal, but Your state may opt to allow you to show up in person and do in person hearing. So when we’re talking about external review, we want to include discussion about the Affordable Care Act. That was dates back to 2010. So the Affordable Care Act, a policyholder, so those are your patients or beneficiaries, the right to independent review. Now, most states already had an independent review process in place. But and Bill and I were talking about this, what he stated about this is that the Affordable Care Act was really when it was enacted, made it illegal right for policy, all policyholders or beneficiaries to be able to take their claims to independent review to take their appeals to independent review.
So the ACA made it illegal right under any policy that the ACA covers. So when they say independent review, they’re talking about outside of the payers internal appeal process. The Affordable Care Act external review applies to group and individual health insurance plans. The the process for external reviews follows that your state’s external review process or it will follow a federal external review process. So states have the option to go ahead and use their own extra review process if it met certain conditions, which I’m going to talk about here in just a minute. Or they could they could offer for their beneficiaries.
The Federal external review process, which we’ll talk about as well, in the Affordable Care Act, they state that the external review process is available for denials that are based on medical necessity. They just say appropriateness, I put in of care in parentheses there because I thought appropriateness to mean it kind of left out, you know, the appropriateness of the care that you’re providing. The denials based on the health care setting, the level of care or the effectiveness of a covered benefit. So notice the difference. It really is basically all about medical necessity, whether it’s, you know, where it’s provided, whether it’s appropriate, whether it’s effective, whether it was necessary.
And you can read about this in the Code of Federal Regulations. That is the reference I have here at the bottom of the slide. CSR stands for Code of Federal Regulations, and that’s where the regulations are posted or published, from anything that comes out of the Social Security Act or from Federal Laws. And that’s a good place to go and read about the Affordable Care Act if you’re not familiar with this portion of it.
Okay, when I was doing some, a little bit of background research for this particular presentation today, I ran across this article that was written, it was actually written in 2018, but it’s talking about the development of the Affordable Care Act. And I thought this was really spoke to, to me quite a bit about, you know, why would I take my cases to external review?
What are some of the advantages of going outside the internal appeal process. And what this gentleman stated in this article is that according to several studies, the use of external appeals in recent years led to rulings favorable to patients and about 50% of cases and, and rulings in about 50% of cases and rulings in favor of an insurer and the other 50%.
So 50/50 chance of getting overturned, and so that experience extensive experience that they were able to look at, was used to help model the federal law of the Affordable Care Act. So that’s, that’s something you know, that people get that people ask all the time, you know, what’s, what’s the overtime rate? What’s the return rate? What if I go to external review, what’s my overturn rate going to be I’m going to talk about that in a couple of slides further into the presentation today, as well, but, you know, 50/50, I would take those odds. That’s pretty good.
And you’re really, so external review is available after the payers internal appeal process has been exhausted. Now, you can, the appeal process can be deemed exhausted if the payer doesn’t follow all of the statutory rules and regulations. So I have an example here, that says the plan has to provide in their notice of adverse determination, a description of the standard that they use to deny your claim and a description of available internal appeals and external review processes. So if they don’t do that, then you can assume or or a probably not using the correct legal language, and Bill will straighten us out on this, but you the internal process is deemed exhaustive. Okay, meaning you could just say I’m done with internal appeal, I’m gonna go it allows you then to go straight to external review and file an external review. So there are some exceptions to going through all of the internal appeal process before you get external review.
Bill Haynes 17:14
Yeah, Denise, let me let me just mention I mean, it makes sense that if, you know, if it was just you have to exhaust the internal process, and that was it, then the payers could simply take a tactic of Doc completing the process and deny you external review. So the deemed exhaustion is a way to prevent that, that if the if the pair’s fail by intention or neglect, to finish out the process, you still have an option of going to external review.
Denise Wilson 17:41
Okay, good. Makes sense. So now, states, they may have, you know, when the ACA Act was being implemented, the National Association of Insurance Commissioners had written a process or have written an act called the uniform health care your external review model at And so states were allowed them to go ahead and use their own process if it was parallel to, or, you know, parallel to I don’t want to use too many words bill to get myself in trouble as far as describing us.
They could use their own internal external state external review processes was in place and it met certain standards, or they could use the HHS administered federal external review process or they or contract with an unaccredited independent review organization.
Okay. So those are the options that the states were given to enact the and as of May 16 2018, which is the latest update on this, there are 6 states who are employing the federal process, HHS administer process, and for territories that are using the federal process. So if the state is using the federal process, the HHS administer process that goes to maximum federal services, they are the administrator that that deals with these external review claims. They have to be filed within four months of your final internal appeal decision. Now, an appointed representative may file on behalf of the beneficiary, you have to do an AOR forum. So this is where we get into the conversation about who can file an external review.
Is it just the beneficiary or is it the beneficiary and the provider? Now, as far as the federally administered program and appointed representative which could be the provider can file on behalf the beneficiary so you can file as the beneficiary The written decision must be issued within 45 days. And then there’s also an expedited process available for you know, when a decision needs to be made about services that are urgent, or emergent. So how much does external review cost? If you’re using the HHS administered federal external review process, there’s no charge. for that. There’s no more than a $25 charge for beneficiaries for a contracted independent review organization or a state external review process.
Okay, so I’m gonna give you a couple of different examples of external review in two different states, New York and Illinois. So in New York, their process states that patients and providers have the right to an external appeal. And that’s not true in every state, that New York allows patients or providers to go to external appeal.
They will look allow you to take to external review denials around medical necessity. services that might be deemed investigational experimental or out of network denial, which is I think, is a little bit unusual as well. Patients have four months to file if the provider is going to file you have 60 days to file if you’re filing on your own behalf. New York allows you to skip a level to appeal back to the payer. So the payer says we have two levels of appeal in New York, you can skip that second one and go straight to external review. Patients pay $25 to appeal to external review, and providers pay $50. To appeal to external review, I want to take just a minute to take you to the second URL that I have listed on this slide, which takes you to a public appeal search engine for the Department of Financial Services in New York. So let me see if I can do this. What without causing too much disruption here and the flow.
There we go, I believe it’s popped up on your screens now. So this is Department of Financial Services in New York. And they have this searchable external appeals archive, which is pretty cool actually. You can and I believe that says it goes back to May 31, of 2019.
And within here, you can search through this archive of there’s 12,576 external review cases in here. And you can look by the appeal type. And you can see medical necessity, of course, is the as I would expect is the largest number of Appeals. And as you can look up here, you can kind of see what is the overturn rate, overturned, overturned, in part, or upheld or all of these decisions, or if you just click on medical necessity, it will refresh and it will tell you what the overturn rate is for just the medical necessity cases, which is the vast majority of these and this comes out to be about, I think a 41% return rate. So not quite the 5050 that we saw in the 2018 article that I cited earlier. But I’d say that still I would go I would take the if it’s a strong case, especially or a high dollar case. Or even immediate, medium, medium strong case, you know, I would take an external review, I thought I had a 40% chances of winning. The other thing about this particular site as well is you can see it by health plan.
Okay, you can see it by the agency, I Pro is one of their independent, external review agencies, how they ruled on these cases, you can search by the different diagnoses and treatments and then you can also get a little bit of a summary. So if I go to inpatient hospital, cardiac, it will actually give me a little summary of why they upheld it, or why they overturned it. So I thought this was fantastic way to have some transparency and some insight into what’s going on external review in the state of New York. And wouldn’t it be great if every state had this to help us out to understand you know, how we can get our claims paid? More appropriately. Okay, so let’s go back to our presentation
Okay, so that’s State of New York. And I just picked our next state is Illinois and I just picked it because I live in Illinois. So it’s a little different. In Illinois, they allow the patient or the patient’s authorized representative to to go to external review. So they don’t mention the provider but you as a provider can be the patient’s authorized representative to take a case to external review. They allow medical necessity appropriateness of care, the healthcare setting level of care effectiveness, investigational experimental. So that’s pretty similar to what I saw in some of the other states I was looking at as well. Patients are the representatives have four months to file, they must exhaust the payers internal appeal process. Again, there’s some exceptions, like we talked about, and the payer is solely responsible for the costs of external review, on cases good external review.
Now, the state processes, this is a state processes resource. It’s called Managed Care legal database. And it is managed by an American Medical Association, it’s another good resource to look at state laws and federal laws that deal with external review. It’s a good base start for research, I wouldn’t say this is the should be the end of your research.
That is a good place to start. If you’re just trying to get like a quick, easy answer to what some of the state laws or federal law say about external review for your particular cases. Okay, and then let’s not forget about traditional Medicare, because you might not think of them as having external review, but they actually do their internal review process is there level one and level two appeals? Now, you might think level two is external review, because they talk about qualified independent contractors, but they’re still contractors, they’re still contracted with CMS, you really get to external review, when you get to level three, four, and five, when you get to level three, the administrative law judge level, that’s performed by the Office of Medicare Hearings and Appeals, which is under the Department of Health and Human Services.
Okay, so that’s external to CMS. So the Department of Health and Human Services, the Office of Medicare appeals is under there and CMS is under there. Okay. So that’s when your external review start. Okay, I’m going to turn the presentation over to Bill and he’s going to give us more information about the external review process. So Bill, I believe it’s all yours.
And you might be muted, though. Am I unmuted? Yeah, there you go. Okay, good.
Bill Haynes 28:03
Thank you. So the state external appeals process. So you’re not in one of those 10 jurisdictions that rely on the federal process? So how do you know and you’ve looked at the law, you say, Okay, this state definitely has some sort of process. So what does that mean? Where do you go? How do you even know what to do? You have to find out like we showed you for New York, like, where’s that equivalent in my state? So you have to do some research. And you probably want to do some Googling, you know, and just look around, but where you’re looking for is for the equivalent type of agencies.
And so the Department of Financial Services in New York is their department of insurance. And that’s really what you’re looking for what department in the state you’re looking for, what’s their Department of Insurance, what’s it called, and it might simply be called the Department of Insurance in New York is called Department of Financial Services in Tennessee, where we have some clients, it’s called the Department of Commerce and
Insurance. But usually, if you start looking around for Department of Insurance in the state, you’ll find you’ll find the website of the agency pretty quickly. And if it’s not under that agency, it might be under something related to Department of Health, or the department, if it’s separate the department that deals with the state Medicaid, state Medicaid plan.
So that’s where I would start looking for those types of agencies that manage whatever the external review process is, and then you need to actually find out what that process entails because it’s going to vary from state to state. So Denise talked about earlier is like what the ACA says it guarantees and what the Office of Health and Human Services have said these states meet our requirements for not having to use the federal service but what does that actually mean you know, as use it Are you seeing not every state has implemented the ACA to its fullest extent. And that’s the same with external review processes.
So an example of that is Tennessee, as I mentioned, where we have some clients, the external review process in Tennessee quite explicitly on the Department of Commerce Insurance website is limited purely to 10 care plans and TennCare is the managed Medicaid of Tennessee. And that’s it.
That’s the only external review process they allow in Tennessee, they have no external review process. For other plants, it just doesn’t exist. So that’s an important limitation to know about if you’re operating in Tennessee. And that’s the kind of thing that just the the boldface language of the law. That’s, that’s not clear. You know, it doesn’t tell you that, you need to find that out by doing the research, finding the agency, read through their website, you know, find if they have a clear section, or they should have a section, whichever agency it is that deals with external review, read through that.
Contact the agency, give them a call, if they have contact information, they should have some contact somebody, email them, or call them and ask questions. Find out what the process is, learn the process and its details. What’s the fee? When does it occur? You know, is it an upfront fee that you have to pay? Is it always paid by the payer?
In what was it I believe in New York, it was an upfront fee, but it had a maximum fee amount. Certain plans are exempt from that fee. In Illinois, the I believe Denise, she said the payer always pay the fee. In Illinois, in what is it in Tennessee, the basically the loser pays the fee afterwards. And so either if if the provider wins, and in Tennessee, you’re you do also have to be acting as the representative of the patient. There is no straight provider option for for the Medicaid external review. If the provider wins, then the payer pays. And if the provider loses, then the if they’re contracted with the payer, the payer can then simply take that out of a future payment.
But the payment always happens on the back end. But that’s an important detail you want to understand. And also it’s a $750 fee. In Tennessee, that’s another thing you want to know how much is the fee how much you’re going to pay? Because not every not every claim is going to be worth going through that time and expense. And that amount of fee.
The deadline or the timeframes again, you know, we saw there several months for for Illinois and the and New York and the federal plan for the for Tennessee TennCare. It’s a year. But it’s a year from the first denial not you’re contesting from the first denial. So not only the timeframe, but when does the timeframe start? When does it end? What’s the interpretation of the state again, you know, the law might say one thing, but the state’s interpretation might not be exactly what you think it might be. So get clarity on those issues. It’s important. The required forms, and I’m sure these are government agencies, I’m sure they’re happy to provide and tell you all about the forms they have.
But you need to know that, you know, if you don’t, again, government agency, if you don’t file with the right form, it’s probably just going to go nowhere. They’re just going to tell you use the correct form. And that’s it. Again, exhaustion, assuming you don’t know this process, you need to look it up. What is exhaustion in your state? There, the law should give you a good indication of what legally exhaustion constitutes? Do you have to go through the entire process? Can you skip any steps? But these agencies should be able to answer those questions if you’ve had difficulty finding that law on your own. And they should know about any exceptions. That there are again, there should be some exceptions that prevent it from being something that the payer can just cut off. But maybe not.
You know, I haven’t we haven’t investigated every single state and every state is going to be different. So you want to that’s something you want to check on. What is it? What is the definition of exhaustion, and what exceptions are there to it?
Make sure you’re dealing with an insurance policy that’s written in the state you’re dealing with, you know, make sure you have the right jurisdiction. Because if you go to the wrong jurisdiction, they’re just gonna say, Nope, you would have done all that work, get all this paperwork together, send it in, they say I’m sorry, this is the wrong jurisdiction, and they’ll just won’t deal with it. They will they very likely they won’t even send it on to the directors section. They’ll just be like Nope, wrong. People go somewhere else.
Okay, be willing to accept the impact of a negative decision. You might lose that is important, people don’t want to hear that. But if you go to independent review you a 50/50 shot, you’d like to imagine that for you that 50/50 is like 90%. No, that’s not the case, you might lose. And you have to be willing to deal with that. What does that mean, if you lose? Because what if you want to go further? What if you want to go beyond this to an arbitration where you want to go to court?
Well, then this negative decision that’s going to be brought up as evidence by the payer, so you need to be willing to deal with the consequences of that. And then, of course, the more simple consequences of Well, now, do I have to pay a fee if it wasn’t an upfront fee? You know, if, you know, that’s a determination on, you know, whether or not a case of a certain value amount is worth taking forward? Is it worth paying, however many, you know, hundreds of dollars and fees, if it’s that high? You know, if we lose? Is it worth spending that money?
Yeah, so then the last part is, so most of these states, not all of them, but a lot of them are going to limit the process to the patient and the patient’s representative. Some of them as we’ve seen, like New York does have a provider process added. But that’s not required. The right under the ACA, that right belongs to the policyholder, which means the patient. So in for most of these processes that we’ve looked at, you need to be the patient or you need to have the patient’s rights, either by an assignment of benefits or an appointment of representation. And so one thing you should consider is integrating that type of assignment into your patients consent to treat forms.
And particularly, you want to have that language be as broad as possible, we suggest having if you do want to include that kind of form of the best practice is to include the have them follow the guidelines of CMS when I should mention now, I forgot to at the beginning of this, so I’m an attorney, this is not legal advice. You know, I’m, I’m an attorney for IHI, I’m not your attorney. This is all provided for informational educational use. And if you need legal advice, you need to find your own attorney.
But best practices I can tell you about and a best practice, we could find some way to include this type of assignment of rights, or authorization representation, preferably language of both into your consent to treat forms, because getting that authorization and assignment afterwards can be very difficult. You know, we’ve we’ve sent lots of AMRs to patients afterwards. And you never hear back from most of the people you send them to after the fact. So to make the to make the greatest use out of this, you really want that to be something you do up front.
Okay, so again, the application, what do you want to include in this? Again, you want to make sure the agency lets you know, what do they expect you to send them. But most of the time, it’s going to be a lot of a lot of this sort of stuff, there’s going to be an application form. If there’s an upfront fee, you know, they’re going to tell you how that needs to be paid.
You don’t want a cover letter that says why you’re sending them this giant stack of papers. So maybe it’s even in paper form. Previous internal appeals to show that it’s been exhausted and why the payer denied the appeal, the various materials that would be necessary DiMarzio B’s coding summaries, denial letters, depending on what type of appeal, they external review, they allow for what type of concerns you want the paperwork that goes along with that, you know, a state some states might allow, you know, coding to be something that they allow for external review, if they do, then a coding summary be important to that and relevant. But if not, then you don’t need them.
You definitely need the patient’s authorization representation, if that’s required, and again, in most jurisdictions, that’s going to be required. And evidence that the insurance policy, you know, that you’re dealing with something that is applicable to the state that their jurisdiction is appropriate, and that their authority does actually apply to this case.
Okay, now, yeah, you’ll have various options at the, you know, online portal that I think is, you know, I think we can all agree that’s probably the best that’s generally going to be pretty secure. But not again, not every state’s going to have that you may have to rely on secure emails, faxing or mail. We find the best practice to use you know, delivery and read receipts if you’re doing emails because you want to be able to track that information. You want to make sure of course, that these emails are secure.
But you want to know, the security and the tracking is to make sure to cover yourself, you know, for HIPAA reasons. And then a lot of state agencies we found particularly during and after COVID, assuming we get to, you know, the nationwide post COVID. Era, fingers crossed. But many state agencies have told us that, you know, they, they would prefer, you know, digital applications where it’s available, you know, email applications, rather than by mail, partially, for obvious reasons, because, you know, medical records can get pretty thick. And, you know, if you’re including a lot of medical records, the records of the internal process plus the forms, that’s a lot, and if you’re going to be sending these to them regularly, a lot of them just don’t want to get that amount of physical paperwork, they would rather have an electronic format.
And, of course, there’s a risk with mail of it getting lost. And that’s a whole, you know, HIPAA thing, too. So, again, best practice when it’s available, we found is to do things in some sort of electronic format. And that tends to be what these agencies prefer. But again, you want to contact the agency. So how, and see, you know, what they actually prefer? What do they say they prefer? Okay, now you’ve submitted it. So what do you do, then? Well, you have to wait. And you know, there should be some sort of confirmation from the agency.
But even if you don’t get that confirmation, you should, if you did some good research ahead of time, know what the timeline is. So you know, make sure you have a good understanding, put it on your calendar, you know, how whoever’s dealing with this process, make sure they know what the timelines are, when they should expect some sort of response from the agency so they can follow up. If that timeline passes.
Yeah, and then prepare for the next steps like is there some additional thing that may need to occur? Is there going to be some kind of hearing. In many of these cases, it’s not what they do is they they take your file, they send it to whoever does the independent review, whether it’s inside or it’s to someone they contract with separately, those people do the review, and you get the result. But some states do hold hearings. And so you know, in that process, their response should include the timeline of that hearing process, and you’ll want to prepare for that, you know, if there is a hearing, that’s the kind of thing you’re probably going to want some legal advice for. But if not, at least, at the very least, you’re going to want to prepare for it.
Because in a hearing, you’re going to need evidence, you’re going to have a need to have arguments prepared and that sort of thing. Again, mark it on your calendar. Now there are no the timelines, and know when the timelines run out, so that you can check with the agency, if they haven’t gotten back to you. Again, these are, these are government agencies, many of them are quite busy. and government agencies have a certain reputation as a whole again, this probably gonna vary by jurisdiction, but governments don’t exactly have reputation for being incredibly fast. So you know, if, if time runs out, check with them, you know, see how it’s going.
Maybe it fell through the cracks, or maybe they’re just overwhelmed, you know, but make sure you check. Because the government agency, they’re probably not going to be checking for you, you have to check for yourself. And then, you know, if you got a good outcome, great, you know, check with the payer demand payment, assuming the the agency itself, you know, doesn’t inform them as part of that process that they need to pay you, then you need to contact the payer, make sure that they know we won, we want our money. But then on a negative outcome, you have to deal with that, like I said, you have to be prepared for the possibility of losing.
Nobody wants that to happen. But you can’t win them all. And when that happens, you need to see, you know, what do you have to do? Do you have to pay and then reevaluate for your next steps? Like can can you take this further? Is it worth taking further? Was there something about why you lost if you get a real decision, like an explanation of why the decision happened? Then you can read that and see, well, what did we do wrong? You know, what was wrong about this case, that led to this negative outcome? And then maybe, depending on what that is, you can make an alteration to your internal process to, you know, to improve it. So hopefully next time, you’ll get a better outcome.
And that, you know, maybe you’ll appeal to a court, maybe you’ll go to court, and maybe you’ll have an alternative, you know, an alternative process. Did you can use, which we’ll get to right after this, I also have a website that I recommend. And like Denise said, this is a start. This is a basis for research but coverage rights. This is through a, I believe it’s a lobbying organization that we have no connection to. But the website itself gives a very basic rundown of the coverage rights for patients and providers in every state. And I find it to be a useful resource for starting research.
And in addition, it has like you’ll click on a state, you’ll see a list of questions that it will answer in very short form about, you know, does the state have external review? What is the process, that sort of thing, it’ll give a short explanation. And importantly, it’ll have citations. And those citations could be to other agencies, and they could be the laws. And those are the things you can use. That’s the jumping off point. He used to do more research into the law and the other agencies that may be involved.
What if you don’t want to go to court. And you know, you lost but you do have other options, or external review isn’t available, or you don’t think you want to do external review for whatever reason. There’s also alternative dispute resolution. So this is, this is a general term in the law for processes that are outside of the court. But specifically what we’re talking about with health insurance is, you know, once you’re done with the internal appeals process, what methods are outside of that internal process and separate from external review? What are those options? And so, again, these are generally private options for talking about the external review process generally, in most cases, it’s a government process. It’s a right given by statutes, and regulations.
And that’s how you get that process. That’s why you’re able to access it. But alternative dispute resolution that’s generally a private process, it’s usually a right, you’re given by contract. It’s usually supported by statutes. There’s a federal statute, and I believe every jurisdiction in the United States also has state law that supports mediation and arbitration. But you know, the being able to access those processes, that’s not an automatic, right, that’s something you need to bargained for.
And it needs to be in your contracts. Or it could also be in the policies of the payer, if you’re not contracted with them. And then the big organizations that that deal with these processes that we’re talking about the American Arbitration Association, the American Health Law Association and jams, which I believe used to stand for judicial arbitration, mediation services, but I think the current name is just the acronym.
So the main methods that we’re talking about with alternative dispute resolution are mediation, and arbitration. And mediation is basically formal negotiation, where a neutral third party helps you and the other party come to a mutual mutually agreeable outcome. That’s the idea. And that third party is called a mediator.
And arbitration is basically a private court procedure. It’s an out of court resolution, but the parties go to a third party called an arbitrator, and they prepare arguments and evidence, present that to the arbitrator, and the arbitrator then makes a decision, they don’t help you come to a decision with the other side, they make the decision based on the evidence and arguments presented. So here’s an example of mediation contract language, from the HLA. This is just and you can read through this, you know, at your leisure, when we put this this up later, but this is two this is language that establishes a right in the first paragraph, to mediation in a dispute.
The second paragraph is about specifying the site of the mediation and the timeline that the mediation would need to happen. And you can specify the qualifications of mediators. Again, as a contractual option, there’s a lot of variants that you can negotiate over when it comes to mediation and arbitration. So it’s something to keep in mind. Again, here’s some sample language for arbitration. This is just the the language providing for arbitration again, you could have the same level of variance.
There’s a lot of details you can work out, or the payer can try to get you to agree to when it comes to negotiating over an arbitration clause in a contract, and that’s something you want to pay close attention to, because one of the things they will do Want you to agree to, which might be worth it, but you want to be very careful about it is, ADR might be your only option. They might say, if you want to resolve a dispute with us, it has to be through ADR, otherwise you can’t go to court, you’re allowed to contract that away. So make sure that if you do that, you make sure it’s worthwhile to have an ADR process that you’re willing to go through. So what’s the again, the difference between mediation arbitration, the central focus of mediation is trying to get the two parties to agree on an outcome.
Whereas arbitration, the central focus, is trying to convince the arbitrator that you’re correct and to decide in your favor. And to prepare for mediation, you really want to see what are your strengths and weaknesses, and then search for compromise and settlement. If you don’t think, you know, you can get along with a payer don’t agree to mediation, if you have that option of still negotiating with it, it if you if you’re forced into it by contract, you know, then you’re going to have to go through it. But mediation where the two parties are antagonistic, that’s probably never going to succeed. I have, I don’t think I’ve ever seen an antagonistic. Case, succeeding going to arbitration, generally, the parties tried to skip it. If they’re at that, if it’s available under the contract, then they try to just skip this process. Often, even when it is mandatory, it is pro forma, the parties show up, talk and get nothing done, and then move on to the next stage, which is often arbitration.
Now, whether or not it is, again, that’s going to be in your contract, but arbitration is very much like a court. It isn’t quite as formal as actual court, but it is much more rigid than a mediation. This timeline is taken from the roadmap from the American Arbitration Association. And it tells you the stages at which you have to go through to progress through an arbitration and mediation is an optional step within an arbitration, you know, so you could have multiple mediations potentially. And this, you know, we found that mediation and arbitration and arbitration from beginning to end usually on average takes a little less than a year, like about eight to 10 months is average, but it can potentially take a lot longer.
And you’re paying at least part of that for the entire period. So be aware of that. This fall, and this brings us to our best practices, like if you’re negotiating or just evaluating, you know, dispute resolution clauses that you already have, or you’re coming up on a new contract that you want to negotiate, these are things you need to keep in mind, you want to limit the number of dispute resolution steps you have, because you’re paying for each of those steps.
You know, the the more time it takes between you starting the process, and getting to a final decision is more time and money, that you’re essentially, you know, wasting, you know, don’t agree to go from dispute, to mediation to arbitration, with someone that you don’t think you’re going to be able to mediate with. So, informal, good faith discussion. That’s something I see in a lot of contracts as a beginning first step. If you know for a lot of payers, the next step should maybe just be binding arbitration. You know, if it’s somebody that you’re having some difficulty with, and you don’t know if mediation is actually going to work, have good faith discussion. See if it’s even worth talking about. If it’s not go straight to arbitration, there’s no reason to have more discussion in between, especially if you’re going to be paying for that entire period. limit on arbitrators.
So and this would also apply to to mediators, but I most often see this in arbitration language. Arbitrators are expensive. Arbitration is not a cheap process. Mediation isn’t cheap either, but it’s a lot cheaper than arbitration. But Arbitration can get very expensive. And if a lot of that cost is in the time and fees of the arbitrator, if your contract or the payer is trying to get you to accept a panel of multiple arbitrators, that vastly increases the expense of arbitration. So best practice, keep the number of arbitrators to one. make clear that there’s an ability to batch multiple claims for dispute resolution.
Most a lot of the claims you’re dealing with, they’re not going to be worth taking through mediation arbitration. There’s just the value isn’t there, particularly when even just the initial fees of paying for a mediator and arbitrator through these agencies. You’re going to want to make it clear in your contract language, if you can, that you can take multiple cases together into whatever dispute resolution you’re going through. Because again, that I’ve seen in contracts that they will prohibit what are called Class arbitrations. That’s their attempt to prevent you from taking multiple cases together.
And the whole purpose of that is to make sure that a large number of claims that simply aren’t worth it individually, that you can never get those paid for that process. And then the timeframes, you’re going to want as long a timeframe as you can get for these processes. Particularly if you do have the option of batching cases together, you’re going to need time to build up, you know, a number of cases that are economically viable to take forward and you want as long a time as possible, preferably no limit.
And I have seen contracts with that. But, you know, if you can get up to a year or more in order to get value together, that’s what you want as like, as much time as you can get to bring the case for particularly, you know, depending on when they start, if they start measuring the ADR time from the initial denial, then a lot of the internal appeal process can, you know, get rid of a lot of that time. So you need to be very careful about where what the timelines are and where they start. These are the references. Yeah, that’s it for my section.
Denise Wilson 56:34
Thanks, Bill. That was really, really good. I’m so glad we were able to get him on today to talk about this, because I learned a lot. And I hope you guys did too. Especially learn the ADR doesn’t always be an additional document request also means alternate dispute resolution. So every time Bill says ADR, I think, additional document,
Bill Haynes 57:00
there were times when you’ve used ADR and I’m like, What are you talking about? She’s not talking about arbitration? What’s going on? Oh, that makes sense.
Denise Wilson 57:11
All right. So we’re running right up on the hour. I want to thank our support team. It’s a corporate office. This is a this is actually our corporate office. It’s not our actual support team. But I think it’s a great picture. So especially AJ Hall, who helped put these together for us and help moderate the sessions.
We probably haven’t checked questions, and I’m guessing we probably have some questions in here. I don’t think we have a chance to answer any of them that while we’re wrapping up here, if you have questions, please go ahead and enter them into the Questions area of the control panel. And Bill and I will do our best to write out some answers to those and we’ll post them on our website within a couple of weeks. So appreciate everyone attending today. I hope you found this helpful and educational as I did, don’t forget to go to our website and sign up for our next webinar or you can also contact us directly. I have our email addresses on the last slide here. If you think of questions after the presentation, or if you want more information on it, part of the survey does ask for suggestions for topics for our next webinars. I hope you’ll take advantage of letting us know what you want to hear about in the future going forward. So thanks, everyone. Hope you have a great Wednesday. Hope you had a great rest of the week and I hope you’re having a great summer. And we will see you again in September.
Bill Haynes 58:46
Thanks everyone. Have a good one.