:: ERISA Plan Stands Down In “Overpayments” Dispute With Providers

ollowing an outcry from physicians and discussions with the Medical Assn. of Georgia, one of Atlanta’s largest employers has temporarily halted work by a company it hired to seek supposed overpayments from doctors.

Earlier this year, Georgia-Pacific authorized Franklin, Tenn.-based Health Research Insights to send 1,100 letters to doctors in Atlanta, Savannah, Ga., and Brunswick, Ga., on what it called a “pilot basis” to solicit repayment for medical claims the company believes were overpaid.

Company stops tapping physicians for “overpayments”, Amednews.com (by Emily Berry) (May 11, 2009)

The drama between a company called  “Health Research Insights” and Georgia physicians has reached an anti-climatic conclusion after protests by physicians and the Georgia Medical Association.  The article cited above is accompanied by another background piece which gives further detail.

The article recites alleged claims by HRI against physicians for “overpayments” which are apparently derived from a computer analysis of provider claims for reimbursement.

Here’s the interesting ERISA angle:

What makes HRI’s effort different from the kind of payback attempts physicians might be accustomed to is HRI’s claim — not yet legally countered — that plans operating under ERISA law aren’t limited by the constraints many states put on insurers, particularly in how far back in time they can go to reclaim payment.

(from Amednews.com)

Let’s put the preemption issue aside for a moment (though I think that issue is more nuanced that HRI appears to claim).  Instead, let’s take a look a the implicit assumption that the plan can make the claim for reimbursement “back in time.”

A plan fiduciary could proceed under 1132(a)(3) against a defendant, but it is always an interesting question as to what relief can be asserted under that provision.  “Appropriate equitable relief” is the delimiting feature of such claims – and that storied phrase has quite a history of controversy.

Are the claims for overpayment limited to instances where a specifically identifiable res exists?  That appears to be clear enough fromGreat West v. Knudson.   (The Sereboff eschewing of “tracing” rules did not abrogate this requirement when properly understood.)  The in the case of old provider reimbursements, going back years, I am quite skeptical of how the ERISA claim would work for the plan.

Evidently, the issue remains viable since Georgia is not the only arena in which these claims are being asserted.  I will reserve for another post some avenues that a plan might advance other than an (a)(3) claim, as well as my reservations about the scope of preemption claimed by the plans under the argument as I understand it from the Amednews.com article.  

Very good coverage of this issue in that publication, by the way, and I have bookmarked the site so that I can follow future developments.