The New Jersey Association of Ambulatory Surgery Centers has sent a letter to its members expressing is opposition to a proposed Horizon Blue Cross settlement and asking its members to consider doing the same.
The letter, attributed to Larry Trenk, president, Roseanne Ottaggio, secretary/treasurer, and Jeffrey Shanton, chair, Advocacy and Legislative Affairs Committee, of the NJAASC reads as the following:
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Dear NJAASC Member,
The NJAASC would like to take this opportunity, to make a final appeal to the membership, regarding the proposed Horizon BC class action settlement. As the new opt-out date draws near (December 16th ), the Board, and the Advocacy and Legislative Affairs Committee of the NJAASC would like to express our opinions and concerns.
After careful consideration, exhaustive deliberation, and consultation with counsel (BrachEichler), we must oppose this settlement. We are not instructing the membership to opt-out, as that is indeed a very individual decision. We trust that each center has done their due diligence, run their numbers and most importantly sought legal counsel. We fully understand that for some centers, the financial arrangements and other provisions might be favorable and acceptable. However, this organization must make its opinion and recommendation based upon the good of the industry as a whole, and from that perspective we must oppose the settlement in it's present form.
We are aware that most members by now have a good understanding of the particulars of the settlement, especially regarding the class action payout and potential recoupment of monies by Horizon. However, there is much, much more involved here. We believe that the membership needs to take everything into account (not just their possible financial gain) when making this important decision.
The ASC industry in New Jersey is in a state of flux and turmoil. This class action has far-reaching consequences that go beyond the immediate financial reward that some centers might enjoy. We feel that there are unacceptable provisions within this settlement, coupled with some potentially precedent setting issues that could possibly become industry standard in the future. There are forces at play that will resonate far beyond a center simply deciding to opt in or out based upon dollars, money.
There is a 'big picture' here to consider. In many respects, this lawsuit is more about the ASC industry in NJ going forward, than it is about settling for a minimal amount of money. Everyone needs to keep that in mind when they make their own decision. Are you looking for 'instant gratification' (taking the money), or are you also considering the state of the industry (in which you are employed) present and future?
It is not our intent (in this letter) to break down and comment on every article and provision of the settlement, but there are some issues and points that may have escaped your attention. There are concerns over the data collecting and reporting that went into this settlement. Everyone should also be aware that of the three original centers in the class, only one remains. There are some pretty big assumptions being made in the settlement proposal that to us, appear minor or even illusory, yet are touted as key provisions of the settlement. Most importantly, there are potentially precedent setting provisions (regarding payment levels and using the Medicare fee schedule) that the industry can simply not afford to accept as standard.
Some of the members are no doubt looking at this settlement as a way to end the harassment, non-payment of claims, and all the other roadblocks that Horizon throws in their path. Indeed, the provision that doctors will not be thrown out of network for taking patients to an OON center is a compelling reason for some centers to consider this settlement.
To all of this we must caution you that this is only a class action lawsuit. It is not law in the state of NJ, nor even DOBI regulation, it is only the provisions of a lawsuit, limited only to those centers that opt in. If you read the settlement, at various places it will make mention of that fact. Thus, as the NJAASC has stated on numerous occasions, the only real way for change (permanent and binding) to be affected, is through legislation, laws.
We understand fully that this process is difficult and time consuming, but it is the only way to affect real change, in our favor. We are currently working this angle. It will be a long, difficult, up-hill battle, but it is one that needs to be fought. Membership needs to be aware of this, that there is hope, light at the end of the tunnel, but it will take a lot of effort, money, and potentially things getting worse, before they get better. There is a piece of legislation (to be re-introduced in a week) that would not allow insurance carriers to throw doctors out of network. Also remember that in January, the law that instructs insurance carriers to send payment to providers (not to the member) goes into effect. These are two issues that are in the settlement as well, the point being, a center does not have to opt in, to gain these benefits, they will be available to everyone, as law, outside of the settlement. Everyone should also remember that legislation has been introduced that would instruct DOBI to not allow insurance carriers to sell policies with restrictions and caps specific to OON ASCs.
This is not an In or Out of Network decision or debate, it cuts across, to everyone, every center. While it may make sense for some centers currently In Network to opt in, what about next year or the year after? Unless there is a 'deal' in place not specified in this agreement, Blue Cross (by this agreement) cannot pay an In Network center more than OON-which would be at most 225% of Medicare. If you are currently (by the terms of your in network contract) receiving more than 225% of Medicare, when your contract expires, you would be limited to this number, at best. So, unless your contract runs through 2013, you would see decreased rates. Most importantly (in our opinion) the terms of this settlement would completely eliminate any choice. If you want to go In Network, or if you are negotiating a new in network deal (after this settlement goes into effect) what bargaining power do you have? The bar, the standard has been set, which of course is what Blue Cross wants (wanted) all along.
All centers, in or out of network, need to be aware of, and look at the 'Big Picture'. While you are an individual center, you are also part of a larger industry.
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Learn more about the New Jersey Association of Ambulatory Surgery Centers.