Lee Polk, Of Counsel in the Employee Benefits practice, in the firm’s Chicago office, was quoted in an article titled “Health Providers Press For ERISA Shield In Insurance Brawls.”
Following is an excerpt:
Insurance companies are increasingly fighting to claw back allegedly improper payments to health care practitioners, triggering a wave of litigation that has the Obama administration and plaintiffs firms pushing courts to let providers use a federal benefit law to cripple recoupment claims.
Aetna, echoing many peers involved in similar suits, argues that it can recover improper payments under state fraud law without triggering the “full and fair review” that ERISA requires for claim denials, and a New Jersey federal judge agreed last year in dismissing the case brought by medical equipment maker Tri3 Enterprises LLC.
The Tri3 suit and similar cases appear to be venturing into unsettled legal territory. When it comes to insured individuals whose requests for benefits are denied, ERISA clearly applies and mandates that certain administrative review procedures are followed, Lee T. Polk of Epstein Becker & Green PC said. But the question of how to view actions by insurance companies to recover money from providers for services that aren’t covered — often by withholding payments for services that are covered — exposes an area of law that isn’t well-defined.
“This is where the law gets kind of unpredictable,” Polk said. “The law is not highly developed on the need to [follow] administrative remedies when it’s the payor trying to [recoup payments].”