Finding an Out of network billing expert witness

Finding an out of network billing expert witness requires an understanding of the importance of data discovery and State jurisdiction Standards. ERISA and self-funded plans as well as administrative services only (ASO) may be factors to consider.

A medical billing expert witness who is also a medical coding expert witness has many essential skills for this type of role.  In addition, the expert witness should have a solid understanding of usual customary and reasonable (UCR) charges as well as UCR payments for in-network and out of network providers.

Out of Network Insurance Billing and EMTALA for Emergency Care

One scenario that presents involve patients who present for treatment in an emergency room.  Emergency physicians and surgeons who perform services a for emergent patients are required under EMTALA (1) to stabilize the patient without considering whether or not the patient has insurance.  Therefore, physicians may find out later that they have treated a patient who is out of network with respect to the healthcare provider’s contracts with payers.  This may remove some of the arguments that are often made about the relationship between health plans and providers such as the ‘willing buyer willing seller’ doctrine.  In other words, under EMTALA the health care provider who cares for a patient in the ER cannot chose

State Out of Network Medical Billing Litigation Updates

Recent litigation in Florida, Texas, California and Pennsylvania sheds some light on the issues with respect to out of network reimbursement.

  • FloridaBaker County Medical Services Inc. v. Aetna Health Management No. 1D08-0067 (Fla. Dist. Ct. App. Feb. 24, 2010) attempted to define ‘charged’ amount and ‘usual and customary’ as well a the amount a provider would accept as payment in full.  This ruling leaves some questions such as a) what is meant by a ‘charge’ vs. ‘pay’ as both are used in the same paragraph?  b) many out of network settlement companies consider Medicare as a basis but pay a multiple or percentage (i.e. 150% of Medicare, 200% of Medicare, etc.)
    • The amount a hospital may be reimbursed for treatment of a patient who subscribes to an HMO that does not have a contract with the hospital is determined according to Florida Statutes § 641.513(5). On appeal, the Court interpreted the following sentence from the law: “Reimbursement for services… shall be the lesser of:…(b) The usual and customary provider charges for similar services in the community where the services were provided…”
    • The Court found that the term “provider” is unambiguously defined in the statute to include all providers of similar services and is not limited to just hospitals. Additionally, the Court interpreted the phrase “usual and customary provider charges” to equate to the fair market value of the services which is the “price that a willing buyer [would] pay and a willing seller [would] accept in an arm’s-length transaction.”
    • Therefore, the Court found that consideration of the amounts billed by providers of similar services, as well as the amounts accepted by providers as payment is appropriate in determining the “usual and customary” rate, but it would not be appropriate to consider Medicare and Medicaid reimbursement rates as they are set by the government and the provider must provide emergency medical services to Medicare and Medicaid beneficiaries.  (See
  • Pennsylvania – Local community charges mattered in a case involving Emergency Care Services of PA and Emergency Physician Associates of PA v UnitedHealth
    • “Two hospital-based physician groups have filed a lawsuit accusing UnitedHealth Group of improperly cutting reimbursements to out-of-network providers, according to Law360.
      In a complaint filed Sept. 15, Emergency Care Services of Pennsylvania and Emergency Physician Associates of Pennsylvania allege
    • UnitedHealth hired a data analysis firm to develop market-based reimbursement rates.
    • However, the plaintiffs allege the tool used to come up with the rates, called Data iSight, doesn’t use information about services or rates in local markets.
    • “It does not use the local information it purports to, and exists simply to paper over the naked, unexcused, and illicit greed of the United defendants, whose growth in profit comes at the direct expense of front-line emergency room physicians,” states the complaint.
    • The plaintiffs allege UnitedHealth paid them between 75 percent and 90 percent of billed value for out-of-network claims for years.
    • After implementing Data iSight, the reimbursement rate allegedly dropped to between 15 percent and 20 percent of billed value for claims.
    • The complaint includes several claims, including breach of implied contract and civil conspiracy, according to Law360.
    • At the time that this information as accessed, Counsel information for UnitedHealth wasn’t immediately available, according to the report. The case is pending in the Court of Common Pleas of Philadelphia County. “
  • Texas – Plaintiff attorneys representing providers argue that the Standard is Usual Customary and Reasonable Charges.

For a Competent Out of Network Expert Billing Witness it is all about the Claim Data

Considerations when disputing out of network claims and working with an out of network billing expert witness:

  1. complete discovery of all medical billing data including standard claim files claim data elements and reasons for payment or non payment
  2. usual customary and reasonable charges in the community
  3. usual customary and reasonable reimbursement or payment in the community
  4. guidance for the expert on applicable case law in the jurisdiction that may set Standards as to how out of network reimbursement should work with health plans
  5. community charges and community reimbursement to health care providers by place of service such as physician office, hospital, surgery center, emergency room, etc.
  6. community charges and community payment by physician professional fee
  7. out of network charges and payment by physician specialty (such as emergency medicine, general surgery, orthopedics or subspecialty such as orthopedics and spine surgery)

As a result, an out of network billing expert witness must possess an understanding of data, medical billing, medical coding, and usual customary and reasonable charges as well as reimbursement if applicable.

(1) The Emergency Medical Treatment and Labor Act (EMTALA) is a federal law that requires anyone coming to an emergency department to be stabilized and treated, regardless of their insurance status or ability to pay, but since its enactment in 1986 has remained an unfunded mandate.