Kristen Blankley, Associate Professor of Law at the University of Nebraska College of Law, has published “Agreeing to Collaborate in Advance?,” Ohio State Journal on Dispute Resolution, Vol. 32, No. 4, 2017. 

Today, the United States Supreme Court will hear oral argument regarding whether a collective action ban included in an employer’s arbitration agreement is lawful under the National Labor Relations Act.  

Yesterday, the United States Chamber of Commerce and a coalition of corporate business lobbying groups filed a lawsuit in the Northern District of Texas seeking to enjoin the Consumer Financial Protection Bureau (“CFPB”) from enforcing a new rule that prohibits most financial service providers from requiring consumers to sign mandatory arbitration agreements that bar class-action lawsuits. 

Lydia R. Nussbaum, Associate Director of the Saltman Center for Conflict Resolution and Associate Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law, has published “Trial and Error: Legislating ADR for Medical Malpractice Reform,” Maryland Law Review, Vol. 76, No. 2, 2017.

By Holly Hayes Texas House Bill 2256 was signed into law on June 19, 2009 and is effective immediately. The bill provides a procedure for mediation of out-of-network health benefit claim disputes. The law now gives patients the option to mediate when they are “balance-billed” by their insurance company for services provided by out-of-network facility-based physicians like radiologists, pathologists, and neonatologists. Balance billing occurs when a physician bills a patient for the difference between what the physician charges for a service and what an insurer pays the physician for that service. When a physician is not in-network for an insurer, there is no contracted payment rate that the physician has agreed to accept from the insurer so the insurer can pay what is deemed appropriate and the patient is billed for the difference. The Problem Patients are not always informed when a facility-based physician is out-of-network. Even though services are provided at an in-network facility, patients may be responsible for out-of-network charges for facility-based physicians. For example, a mother gives birth in the hospital and the next day a neonatologist visits the baby before both are discharged home. If the neonatologist is not part of the hospital preferred provider plan, the mother will be billed for the balance of the amount not covered by insurance. It is unlikely the mother would even consider that the neonatologist visiting her baby – in the hospital – is not included in the hospital’s preferred provider plan.   Facility-based physicians may not be part of a hospital’s preferred provider plan for a variety of reasons. In testimony for the House Insurance Committee on House Bill 2256 on March 24, 2009, William Hinchey MD, Past President of the Texas Medical Association (TMA), outlined some of the possibilities. Some health plans refuse to acknowledge facility-based provider services as reimbursable services. Sometimes a health plan will sign an exclusive arrangement with a national provider that operates in a different city from the hospital. Reductions in fee schedules, absent negotiation with the facility-based physician, leave the physician with no recourse but to withdraw from the preferred provider plan.   The Solution   HB 2256 gives patients the option to mediate when they are balance-billed. The law allows enrolled members of a preferred provider plan – or a Texas employee health benefit plan that is not a Health Maintenance Organization (HMO) – to request mediation for an out-of-network claim settlement if two criteria are met. First, the enrolled was responsible for a payment greater than $1,000 to a facility-based physician after deductibles, co-payments and coinsurance. Second, the facility-based physician provided the service in a hospital that was contracted with the health plan administrator or in a preferred provider hospital.   The new law has implications for healthcare facilities. Healthcare facilities providing facility-based physician services that are out-of-network to a patient are required to notify the patient of the mandatory mediation procedure. Providers are also required to give patients a list of all facility-based physicians who have privileges at the facility and inform patients that these physicians could bill them for amounts not paid by their insurer.   HB 2256 has implications for insurance companies as well. The law requires the insurance commission to adopt rules for an insurer to submit documentation to the Texas Department of Insurance (TDI). Insurers must submit the methods used to compute out-of-network reimbursements and the effect these methods could have on the insured’s out-of-pocket costs.   If a patient requests mediation for an out-of-network claim settlement, a mediator agreed upon by all parties (or appointed by the chief administrative law judge by random assignment) would conduct the mediation. Each party would have an opportunity to state their position. The mediation would consider three issues. First, whether the amount charged by the facility-based physician was excessive. Second, whether the amount paid by the insurer for the service was the usual and customary rate (UCR) or unreasonably low. Third, whether the amount for which the enrolled is to be responsible is excessive. In conclusion, HB 2256 now gives patients the option to mediate when they are balance-billed by a facility-based physician. In addition, the bill requires healthcare providers to take steps to inform patients that they may be responsible for facility-based physician fees. Insurance companies will be required to provide information on how physician reimbursement is determined and any effects this may have on a patient. As a result of HB 2256, patients should now be better informed and will have the option of mediating if they are balance-billed. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.  

By Holly Hayes While the use of mediation for conflict resolution is gaining strength in a number of industries, a recent accreditation standard (LD.01.03.01) issued by The Joint Commission is expected to prompt hospitals to explore an expanded use of mediation to manage conflict in the healthcare setting. The new Leadership Standard: Conflict Management Standard LD.01.03.01 became effective January 2009. The overall standard states, “The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Elements of Performance, or how The Joint Commission will score the standard, include: Development of a code of conduct that defines acceptable, disruptive, and inappropriate behaviors; and creation and implementation of a process for managing disruptive and inappropriate behaviors. Mediation is one tool a governing body can approve and a leadership team can implement to manage disruptive behavior among: management and staff, all levels of clinical staff, vendors and hospital staff, governing board members; and patients and staff to name a few. An outside, neutral mediator can be hired or contracted on a contingency/as-needed basis or internal staff can be trained in mediation techniques. By definition, a mediator is impartial and neutral; a facilitator, not a decision maker; and does not advise, evaluate or advocate for any particular resolution. Mediation gives the parties involved the ability to determine the outcome and resolution of their issues. The mediation process is simple, but can have a profound effect on the outcome of a dispute. Both parties share their concerns without interruption. The mediator may then ask questions for clarification and will develop a problem statement to summarize the issues to be addressed during the mediation. At some point, the mediator may meet privately with one or both of the parties and anything discussed privately cannot be shared unless agreed upon by the party and the mediator. Typically, the parties then brainstorm together to develop solutions for their issues. If an agreement is reached, a written resolution is developed which is final and binding when signed by both parties. As stated by the American College of Physician Executives (ACPE) and American Organization of Nurse Executives (AONE), “Disruptive behavior in a health care setting can lead to an unsafe environment for patients.” Mediation can be an effective tool to resolving conflict to enhance patient safety and improve the future working relationship of the parties involved.