NN&I - May 2010
Facility Management www.nephronline.comMarch 2010 Nephrology News & Issues 37state law. For those plan documents that promise payment of a percent-age of UCR charges, basing payment on a recommended amount chosen by a repricer that is less than the UCR charges may result in a breach of that commitment, which in turn can trig-ger a legal liability. Under ERISA (and many state laws), this liability can take the form of treble (triple) damages, pre-judgment interest on amounts with-held, and attorneys' fees. In addition to this breach of fidu-ciary duty, repricers themselves can be sued for violations of several laws. One is the federal Lanham (Trademark) Act, which contains federal statutes of trademark law in the United States. Others are state laws for false or mis-leading advertising and promotion, on the theory that they misrepresented the self-insured health plan holders and third-party administrators by stating that the recommended rate had been agreed to by the providers or was other-wise an appropriate rate of reimburse-ment. Repricers also face allegations of interference with contractual relations, which could cause the group consist-ing of the self-insured health plan hold-ers, third-party administrators, and the repricer to face civil charges for con-spiracy under the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Damages for violations of RICO can include treble damages, dis-gorgement of profits, attorneys' fees, and even punitive damages.In recent years, dialysis providers have gotten much more aggressive about these practices, bringing several lawsuits across the country against repricers and their clients. One recent case was Boise Dialysis LLC v. Victor Nieto, MS Administrative Services, Inc., Omnipure Filter Company, Inc., and Dialysis Cost Containment Inc. This case was filed in Idaho federal court in July 2007 and was later set-tled. Another case, Total Renal Care, Inc. v. Coalition America, Inc., Western and Southern Life Insurance Company, Western and Southern Financial Group Beneflux Plan, was filed in Federal Court in Georgia in August 2008 and was recently settled. Also, DaVita Inc. v. Payor Reimbursement Negotiators, Inc. and Dialysis Cost Containment, Inc. was filed in Texas federal court in December 2008 and is currently ongoing.Repricer responses to litigation It should first be noted that repric-ers are aware of the potential for legal challenges to their UCR determina-tions. One repricer that focuses on dial-ysis services notes on its website that "risky U&C arguments" are "open to legal challenges." As noted in the case study (see page 38), another includes in its agreement with clients that: "The client shall be wholly responsible for all decisions with respect to pay-ment, denial (based on medical neces- sity and plan provisions), repricing or Facility Management_0510_3.indd 37 4/16/10 4:56:00 PM
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