Medical Billing Expert Witness Howell and Collateral Source Rule

Medical billing expert witness Howell specials work in California in matters involving personal injury, medical malpractice, and payor provider disputes.  Experts should have  an understanding of the collateral source rule.

The leading case on the “actual amount paid” approach is the California case of Howell v. Hamilton Meats & Provisions, Inc., 257 P.3d 1130 (Cal. 2011).  Howell v Hamilton Meats and other case law require an understanding of the difference between charges and health plan payments.   A ‘collateral source’ such as insurance may or may not be a basis for the value of healthcare.  Instead, a medical billing expert witness Howell knowledgeable professional needs to be able to opine on Usual, Customary, and Reasonable or UCR costs for care by understanding what providers charge in the local geography.

To illustrate, national pricing perspectives are also important.    Medical billing expert witness Howell engagements should also consider the fact that while insurance may not be a collateral source for the cost of care, that under the Affordable Care Act (ACA) any insured person with a conforming health plan has an out of pocket maximum for the cost of their care.

To clarify, Appellate courts in fifteen (15) states and the District of Columbia have held that the injured plaintiff may recover the amount billed, and bar the defendant from presenting evidence of the lower amount that the health care provider accepted to satisfy the bill. Most of these courts ground their decision on the common law CSR. The “billed only” rule applies in Arizona, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Massachusetts, Mississippi, Oregon, South Carolina, South Dakota, Virginia, and Wisconsin.   In these states, it is essential to use expert testimony from a medical billing expert witness to opine on the true usual customary and reasonable amount of billings.

Medical Necessity and Howell Expert Witness Testimony

As a result, Medical necessity may apply for a medical expert witness who understands Howell.  To explain, Medical billing experts use the physician’s diagnosis codes and correlating procedure codes.  Compare these against the insurance policy and coverage determinations.  A medical billing expert witness should have a strong basis for their opinion.   Accomplish in part by demonstrating an understanding of medical coding, and provider market charges.  Also, understand national charges and various billing models by providers.  For example, inpatient billing uses different codes (DRGs, ICD-9, ICD-10 CM, ICD-10 PCS).

The Inpatient Prospective Payment System is essential to understand because it may affect billed charges.  The Outpatient Prospective Payment System (OPPS) is important as are physician fees using CPT codes.  Ambulance charges use HCPCS codes.  If Medicare, National Coverage Determinations (NCDs) and Local Coverage Determinations (LCDs) apply.  Even though insurance does not apply in a particular matter, the underlying necessity of the service in coverage determinations can apply.

Damages and the Medical Billing Expert Witness using Howell

In determining the amount of damages as evidence in a personal injury trial, judges often decide whether to admit higher, billed amount or the amount after insurance.  The lesser amount actually paid as the cost of services rendered after the write-off, or both.  Most importantly, the data informs the jury who may decide what final amount the injured plaintiff may recover as an element of damages. The result is a very awkward collision between the realities of today’s health insurance industry, modern medical billing, and a 200-year-old legal rule known as the Collateral Source Rule (CSR).  Medical billing expert witness Howell should understand CSR.

Collateral Source Rule

Medical billing expert witnesses should understand that many states have a collateral source rule.

To clarify, a Collateral Source Rule (CSR) has been called one of “the oddities of American accident law.” John G. Fleming. The Collateral Source Rule and Loss Allocation in Tort Law, 54 CAL. L. REV. 1478 (1966). CSR doctrine states that if an injured party in a civil lawsuit receives benefits from an insurance policy those are collateral benefits.  Such collateral or other source independent of the third-party tortfeasor (defendant), cannot be revealed to the jury. Damages paid by a collateral source are sometimes referred to by the tort reform advocates as “phantom damages.” The Restatement of Torts, Second, defines the CSR in § 920A(2):

§ 920A Effect of Payments Made to Injured Party

(1) A payments by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments by another who is, or believes he is, subject to the same tort liability.
(2) Payments to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.

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Michael F. Arrigo

Michael Arrigo brings four decades of experience in the software, financial services, and healthcare industries. In 2000, Mr. Arrigo founded No World Borders, a healthcare data, regulations, and economics firm with clients in the pharmaceutical, medical device, hospital, surgical center, physician group, diagnostic imaging, genetic testing, health IT, and health insurance markets. His expertise spans the federal health programs Medicare and Medicaid and private insurance. He advises Medicare Advantage Organizations who provide health insurance under Part C of the Medicare Act. Mr. Arrigo serves as an expert witness regarding medical coding and medical billing, fraud damages, as well as electronic health record software for the U.S. Department of Justice. He has valued well over $1 billion in medical billings in personal injury liens, medical malpractice, insurance fraud cases. The U.S. Court of Appeals considered Mr. Arrigo's opinion regarding loss amounts, vacating, and remanding sentencing in a fraud case. Mr. Arrigo provides expertise in the Medicare Secondary Payer Act, Medicare LCDs, anti-trust litigation, medical intellectual property and trade secrets, HIPAA privacy, health care electronic claim data Standards, physician compensation, Anti-Kickback Statute, Stark law, the Affordable Care Act, False Claims Act, and the ARRA HITECH Act. Arrigo advises investors on merger and acquisition (M&A) diligence in the healthcare industry on transactions cumulatively valued at over $1 billion. Mr. Arrigo spent over ten years in Silicon Valley software firms in roles from Product Manager to CEO. He was product manager for a leading-edge database technology joint venture that became commercialized as Microsoft SQL Server, Vice President of Marketing for a software company when it grew from under $2 million in revenue to a $50 million acquisition by a company now merged into Cincom Systems, hired by private equity investors to serve as Vice President of Marketing for a secure email software company until its acquisition and multi $million investor exit by a company now merged into Axway Software SA (Euronext: AXW.PA), and CEO of one of the first cloud-based billing software companies, licensing its technology to Citrix Systems (NASDAQ: CTXS). Later, before entering the healthcare industry, he joined Fortune 500 company Fidelity National Financial (NYSE: FNF) as a Vice President, overseeing eCommerce solutions for the mortgage banking industry. While serving as a Vice President at Fortune 500 company First American Financial (NYSE: FAF), he oversaw eCommerce and regulatory compliance technology initiatives for top ten mortgage banks and led the Sarbanes Oxley Act Section 302 internal controls IT audit for the company, supporting Section 404 of the Sarbanes Oxley Act. Mr. Arrigo earned his Bachelor of Science in Business Administration from the University of Southern California. Before that, he studied computer science, statistics, and economics at the University of California, Irvine. His post-graduate studies include biomedical ethics at Harvard Medical School, biomedical informatics at Stanford Medical School, blockchain and crypto economics at the Massachusetts Institute of Technology, and training as a Certified Professional Medical Auditor (CPMA). Mr. Arrigo is qualified to serve as a director due to his experience in healthcare data, regulations, and economics, his leadership roles in software and financial services public companies, and his healthcare M&A diligence and public company regulatory experience. Mr. Arrigo is quoted in The Wall Street Journal, Fortune Magazine, Kaiser Health News, Consumer Affairs, National Public Radio (NPR), NBC News Houston, USA Today / Milwaukee Journal Sentinel, Medical Economics, Capitol ForumThe Daily Beast, the Lund Report, Inside Higher Ed, New England Psychologist, and other press and media outlets. He authored a peer-reviewed article regarding clinical documentation quality to support accurate medical coding, billing, and good patient care, published by Healthcare Financial Management Association (HFMA) and is published in Healthcare IT News.

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