Litigating Against the Out-of-Network Health Plan – Cases Informing the Providers’ Perspective in 2021 and 2022

It is difficult enough for a health care provider to sue a health plan when the provider is “in network”. When there is no network agreement and hence no privity upon which to base claims either for express breach or violations of implied covenants of good faith and fair dealing, then the task becomes even more onerous. Important questions must be carefully considered and answered before a decision to litigate can be made. Without a contract, how does the provider obtain standing? Has the provider strictly complied with all prerequisites required either by the health plan benefit design / summary plan description, such as exhausting administrative remedies? Has the plan administrator itself complied with all of the administrative requirements mandated by the plan design? Can a credible argument that the plan administrator has abused its discretion, violated a plan provision or an express law or regulation even be made out, let alone supported by sufficient (often substantial) evidence? Can the provider even identify the plan administrator (no; it often is not the entity adjudicating the claim)? How likely is it that a “win” will result in a favourable determination by the court instead simply of a referral back to the plan administrator for a second bite at denying the claim? How are all of these questions different when a provider considers suing a commercial health plan, a Medicare Advantage plan, a self-funded ERISA plan? Can the provider afford to sue the plan? Can it afford not to?

The best insight and instruction on these and many other important issues a provider should consider before instituting litigation against a health plan come from a review of current cases. In this informative and highly relevant program, our expert speaker Thomas Force, Esq., will present a selection of timely decisions from the past two years which frame the issues, highlight the legal and operational barriers that faced the litigating provider, demonstrate the advantages and disadvantages of various litigation strategies, and analyze the results. For the provider, the takeaway will be a comprehensive yet manageable “tool box” that will help frame the advantages as well as the disadvantages of litigating a specific issue against a particular health plan in the current legal environment.

Webinar Highlights

• What we must know before we institute a lawsuit (the information and documentation we must have)
• What we must do before we institute a lawsuit
• Whether we have “standing” to sue, and what “standing” means
• The courts in which we can sue, and the courts in which we should sue
• Suing the correct parties
• The standards of review the court likely will apply
• Whether the likely outcome, even if favorable, is “worth the cost” and the practical considerations that go into the decision

Who Should Attend

This program is of real value not just for health law professionals but also for revenue cycle and patient account directors; case managers and utilization review personnel; and ‘C Suite” executives who often must make the final decision on whether or not to sue.