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Out of network charges: A case worth watching
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A case in California will make major news whichever way it is decided. Aetna has sued several ambulatory surgery centers (ASCs), as well as the owners and managers of the ASCs, including individual surgeons, claiming that the way the ASCs handle out of network patients is fraudulent. There are several different theories articulated in the complaint, but the one that may be most interesting is that the ASCs are committing fraud when they fail to collect the entire beneficiary liable portion of a fee. According to the complaint, under Aetna’s plans, when the ACS bill Aetna for a surgery, the patient would typically be responsible for paying between 20% and 50% of the bill.
However, Aetna is alleging that the ASCs are collecting far less from the patients, treating the patient as if the ASC was part of Aetna’s network. While the ASC charges Aetna its full-billed charge, the patient is only expected to pay the same coinsurance the patient would pay at an in-network ASC, or may even be absolved of any obligation to pay coinsurance at all. Aetna alleges that this is fraudulent, unfair competition under California law, and interferes with the contract between the plan and the patient. In essence, Aetna is claiming it has the right to require patients to pay substantial coinsurance for seeking care out of network, and that the ASCs willingness to accept a lower coinsurance is fraudulent and improper.
In a somewhat similar case in New Jersey, the court ruled for the ASCs. Because it is relatively common for physicians to offer to treat out of network patients at in-network rates, the outcome of this case will be important. While some theories used by Aetna are unique to California, other theories apply across the United States. Any final ruling in the case is likely to be months away and it is certainly possible that the parties will settle the suit without any judicial decision. In the meantime, it is worth being aware of the legal risks associated with discounts to out of network patients.
