2012 Ryan White Meeting
Technical Assistance:
Negotiating Contracts with Managed
Care Organizations
presented by:
Adam J. Falcone, Esq.
of
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Disclosures
This continuing education activity is managed
and accredited by Professional Education
Services Group. The information presented in
this activity represents the opinion of the
authors. Neither PESG, nor any accrediting
organization endorses any commercial
products displayed or mentioned in
conjunction with this activity.
• Commercial support was not received for this activity.
• Adam J. Falcone, Esq. has no financial interest or relationships to
disclose.
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Disclaimer
• This presentation has been prepared by the
attorneys of Feldesman Tucker Leifer Fidell LLP.
The opinions expressed in these materials are solely
their views.
• The materials are being issued with the
understanding that the authors are not engaged in
rendering legal or other professional services. If
legal advice or other expert assistance is required,
the services of a competent professional should be
sought.
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Learning Objectives
At the conclusion of this activity, the participants
will be able to:
1. Identify the various types and models of
managed care.
2. Understand the meaning of key provisions in
managed care contracts.
3. Learn how to negotiate with MCOs for fair
payment.
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Medicaid Managed Care Programs
• Almost 72% of Medicaid beneficiaries were
enrolled in some form of managed care as
of 2009.
• Every state except for Alaska, Wyoming,
and New Hampshire uses managed care in
Medicaid.
• Trends in Medicaid managed care today:
• Managed care is viewed as cost
containment tool as beneficiary
population expands and states face
budget crises.
• States expanding Medicaid managed
care to cover more fragile populations.
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Managed Care: Why Now?
• Affordable Care Act
• Medicaid
Expansions
• State Health
Insurance
Exchanges
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Service Delivery Models in Managed Care
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Service Delivery Models in Managed Care: HMOs
Health maintenance organizations
(HMOs)
• Provide care to voluntarily enrolled
group.
• Provide fixed set of basic and
supplemental services.
• Require enrollees to use services of
designated providers.
• Specialist services may be accessed
only through a referral by the
enrollee’s primary care physician
(PCP).
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Service Delivery Models in Managed Care: HMOs
HMO provider network models
• Staff model: HMO directly
employs physician staff.
• Group model: HMO contracts
exclusively with a single
provider group.
• Network model: HMO
contracts with independent
practice associations (IPAs),
medical groups, or individual
physicians.
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Service Delivery Models in Managed Care: PPOs
Preferred Provider Organizations
(PPOs)
• Arrangements negotiated
between a third-party payer and
group of providers.
• Providers offer discounted fees
to payor.
• Payor, in return, expects to
receive prompt payment and a
certain volume of patients.
• Easier for enrollees to access
care outside network than under
HMO, but cost-sharing is higher
than for in-network services.
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Service Delivery Models in Managed Care: Specialty Plans
• Many public and private payors
provide specialized services
through separate plans
(sometimes called a carve-out).
• Common services to provide
through carve-out plans are
dental care, prescription drugs,
behavioral health services, and
vision care.
• Concept behind carve-out plans is
that a specialized entity can
better handle risk associated with
these services.
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Provider Reimbursement Methods
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Provider Reimbursement Methods: Fee-for-Service
• Provider agrees to a fee
schedule (typically, with a
different fee for each
service).
• Provider submits to MCO a
retrospective claim for
each service provided.
• High volume of service
usage, or usage of costlier
services, benefits the
provider, since each
service is billed separately.
• Revenues increase as more
services are provided.
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Provider Reimbursement Methods: Fee-for-Service
• Main advantage of fee-for-service
payment is predictability.
• Disadvantages of fee-for service
payment:
• Burdensome claims submission
process
• Payment disputes arising where
MCO determines claim
submitted not to be a “clean
claim”
• Provider responsibilities relating
to coordination of benefits
(identifying third-party payors)
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Provider Reimbursement Methods: Capitation
• Provider receives prospective flat
payment for each enrollee per
month (“per member per month,”
or PMPM, payment).
• Payment does not vary according
to number or nature of services
provided.
• Number of enrollees in provider’s
panel, rather than the actual
utilization of services, dictates
payment.
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Provider Reimbursement Methods: Capitation
Advantages of capitation:
• Non-clinical services, such as case
management, can be taken into account
in payment.
• Disputes over payment less likely to arise
under capitation than under fee-forservice.
Disadvantages of capitation:
• Unpredictability
• Capitation may encourage providers to
ration treatment in order to contain
costs.
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Provider Reimbursement Methods: Care Management Fees
• “Primary care medical home” (PCMH)
model: each patient has a relationship
with a PCP who serves as patient’s first
contact.
• PCMH programs encourage PCPs to
provide care management and other
enabling services.
• Recent years have also seen rise in
“disease management” programs in which
PCP is required to implement plan of care
addressing chronic condition.
• A per-member-per-month fee often used
by payors or MCOs for care management
services when the provider is otherwise
paid on fee-for-service basis.
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Contract Review Strategies
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Managed Care Contract Review Strategies
• A thorough review of the proposed contract
between the provider and an MCO, from the
business, operational, clinical, and legal
perspectives, is essential.
• The three basic steps:
• Preparation process
• Contract analysis
• Negotiation with MCO
• Most MCOs offer a “standard contract”; do not
assume that the provider must accept this
contract wholesale!
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Preparing to Review
• Set a timeframe for review.
• Assemble review team.
• Establish “point person” and review team lead.
• Assign areas of contract review to team
members based on expertise.
• Assemble documents.
• Obtain entire proposed contract from MCO,
including all referenced and incorporated
documents.
• Obtain other documents necessary to
understand legal obligations (for example, in
Medicaid managed care, the MCO’s contract
with the State).
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Preparing to Review
• Considering past performance of
the MCO is crucial. If applicable,
gather information about past
experience of the provider with this
MCO:
• Did the MCO meet its payment
obligations on time?
• Was the number of denied claims
excessive?
• Did the MCO give the provider a role
in the development of policies, such
as utilization review?
• Was the MCO responsive to the
provider’s requests?
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Negotiating the Contract
• Assessing leverage is a key component of
a successful negotiation.
• If the MCO if required by law to include
the services in its network, and there are
few providers offering those services,
then the MCO is more likely to respond
positively to proposed contract
modifications.
• The provider should keep in mind (and
make sure that the MCO is aware of) its
internal strengths and abilities (e.g., ability
to deliver cost-effective, quality services
promptly and reliably; access to target
populations; ability to monitor and control
utilization, costs and quality assurance).
• The provider should also recognize its
weaknesses and be prepared to address
them in negotiation should they come up.
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Negotiating the Contract
• Assessing leverage also
includes an evaluation of
the MCO’s background
and fitness. The provider
should examine the
following elements of the
MCO’s operation:
• Financial stability and
strength
• Administrative record
• Operational methods
• Structural framework
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Contract Review
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Scope of Services
• MCOs typically contract with a range of providers, each
of which furnishes a subset of the full range of services
that the MCO is responsible for covering on behalf of
the payor.
• The scope of services section of the contract specifies
which covered plan services the provider is responsible
for providing.
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Covered Services
• It is important to distinguish the scope of
services included in the provider’s
contract with the MCO, from covered
services (the services available to the
enrollee under the MCO’s plan).
• Sometimes, groups of enrollees have
different benefits plans; not every service
falling in the provider’s scope of service
under the contract is covered under a
particular enrollee’s benefit plan.
• The contract should make clear that the
provider may treat enrollees as privatepay patients for purposes of providing
non-covered services.
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How Services Are Provided
 The contract should clearly
state any limits on how
services can be provided by
the provider, including:
 Limitations on which types
of clinicians may provide
certain services
 Limitations on the
provider’s ability to arrange
for services through
subcontract
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Referral Policies
• The MCO contract will likely contain provisions specifying when
and how the provider may make referrals of enrollees to other
practitioners.
• The PCP serves as a “gatekeeper,” determining enrollees’
access to specialty services; MCO constraints on referrals can
negatively impact service delivery.
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Gag Clauses
• A gag clause is a contract provision that limits the PCP’s or other
clinician’s ability to advise patients of all medically appropriate
treatment options.
• Some gag clauses are based on moral and religious
considerations prohibit the provider from counseling patients on
services to which the MCO objects (e.g., abortion, contraceptive
methods).
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Access Standards
•
•
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These standards define the required level and
availability of care from a patient-centered
perspective.
Access standards in managed care contracts commonly
address:
• Required hours and days of operation and
coverage (including evening and weekend
business hours)
• After-hours coverage and on-call coverage when a
designated health care professional is unavailable
• Maximum waiting times for establishing an
appointment for various categories of services
• Required intervals for providing specific services,
such as well child checkups
• Maximum waiting-room times
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Enrollee Change of Providers
• While most contracts contain provisions
dealing with enrollment into and disenrollment
from the managed care plan, some fail to
address the need for a procedure to handle the
transfer of an enrollee to another primary care
provider (PCP) within the MCO.
• Some of the reasons you may want to transfer
an enrollee include:
• Behavior of an enrollee (e.g., disruptive, unruly,
abusive or uncooperative)
• Any other reason which impairs the provider's
ability to furnish services to either that Enrollee
or other Enrollees
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“Clean Claim” Rules
•
Contracts with fee-for-service reimbursement
typically make payment contingent on the filing
of a clean claim.
• “Clean claim” is a claim that can be
processed by the MCO without requesting
any additional information from the
provider or a third party.
 The contract should clearly define “clean claim,”
and attach approved forms and an instructional
manual.
 Providers should be wary of provisions giving
the MCO the right to “re-bundle” codes or
otherwise modify submitted claims according to
the MCO’s payment protocols, in order to make
the claim conform to “clean claim” standards.
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MCO Timely Claiming Rules
 The contract should allow a sufficiently long
window for the provider’s submission of
claims to the MCO (at least 60 days).
 Providers should check the proposed
contract for provisions concerning the
consequences of late claim submission.
 The provider should negotiate for a
provision that makes MCO denial of late
claims discretionary rather than mandatory.
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Prompt Payment Rules
•
Just as the MCO has an interest in timely claims
submission, the provider has an interest in timely
payment!
 The contract should include a prompt payment provision.
 In fee-for-service contracts, number of days from
submission of claim (30 to 45 days is typical)
 In capitation contracts, fixed date for prospective
PMPM payment (typically by 5th day of month that
the payment covers)
 The contract should impose interest on the MCO for late
payments to the provider.
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Correction of Overpayments and Underpayments
•
MCO contracts typically allow the MCO to recoup
overpayments (excess payment by the MCO to the
provider).
•
Contracts commonly permit the MCO to recoup an
overpayment by offset; the MCO subtracts the
overpayment from any amounts due to the provider.
 The contract should not allow such an offset until the
MCO has given the provider notice of the alleged
overpayment and afforded the provider an opportunity
to appeal the determination.
 The contract should also permit the provider to dispute
underpayments.
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Dispute Resolution Process
 The contract should contain a streamlined,
expedited process for claims disputes, and a more
elaborate process for other disputes.
 The contract should use a graduated, step-by-step
dispute resolution process.
 Informal negotiation
 Mediation
 Arbitration (binding or non-binding)
 The contract should not require the provider to
exhaust an appeals process within the MCO
before resorting to other measures.
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Term
• Contracts generally state how long the contract will be in
force (term) and the procedures for renewing or
terminating the contract.
• When initially contracting with an MCO, the provider may
want to limit the term of the contract to one year without
automatic renewal (“evergreen”) provisions.
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Termination
•
•
•
Contracts can typically be terminated “for cause” or “without cause”.
The situations that constitute cause are generally breaches of material
terms of the contract .
Typically either party may terminate with or without cause after
providing notice to the other party (e.g., 30 days’ notice in terminations
for cause; 60 days’ notice in terminations without cause).
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Breach and Cure
• Breaches (violation of the terms of the contract)
sometimes lead to termination of the contract,
but not always.
• The contract should give the breaching party an
opportunity to “cure” (fix) most breaches before
termination is triggered.
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Renewal
• In most contracts favorable to providers, renewal
of the agreement is contingent on mutual
agreement as to payment terms for the
subsequent term.
 The contract should specify how quickly
renegotiation of payment terms must occur after
one party notifies the other party of its desire to
renegotiate, with a deadline for a decision.
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Amendments
•
Amendment provisions are particularly crucial in MCO contracts, because the
clinical, operational, and financial environments in which the parties operate are
subject to constant change.
 The contract should guarantee the provider’s right to review any and all changes to
the contract.
 The contract should provide that no changes shall take effect until and unless the
provider has given prior written approval.
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Other Legal Provisions
•
•
•
•
•
•
•
•
•
Patient Cost-Sharing
Third Party Liability / Coordination of Benefits
Indemnification
Insurance
All-Product Clauses
Non-Discrimination Clauses
Licensing
Credentialing
Utilization Management/Review
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Contract Review Checklist

Scope of Services: Does the contract clearly define the scope of services?

Covered Services: Does the contract or its attachments clearly identify the covered services
available to enrollees?

Non-Covered Services: Does the contract specify any requirements that the provider must meet
in order to charge enrollees for non-covered services?

Choice of Practitioner: Does the contract impose any limitations on which types of practitioners
may provide services?

Referrals: Are policies, procedures, protocols and timelines regarding referrals clearly spelled out in the
contract or attached and incorporated by reference?

Referrals: Does the contract allow the provider to determine whether and when to make referrals for
specialty care or hospitalization?
 Gag Clauses: Does the contract impose any limitations on the provider’s practitioners from advising an
enrollee about the patient’s health status or treatment options, the risks, benefits, and consequences of
treatment or non-treatment, and the opportunity for the patient to refuse treatment or express
preferences about future treatment decisions?
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Contract Review Checklist
 Access Standards: Can the provider meet the access and appointment standards under its
current resources and staffing?
 Access Standards: Is payment adequate under the contract to cover all of the costs incurred in
meeting the access and appointment standards?
 Enrollee Change of Providers: Does the contract allow the provider to transfer an enrollee to
another primary care provider for cause?
 Claim Submission: The contract should establish clear timelines for payment of claims and
penalties for late payment.
 Clean Claim: A specific definition of a “clean claim” and associated forms and instructional
manuals on claims submission should be provided with the contract.
 Correction of Underpayments and Overpayments: The contract should not include provisions
allowing unilateral recoupment of overpayments by the MCO, nor allow the MCO to offset any
overpayments against future claim payments.
 Amendments: The contract should not include provisions that allow the MCO to unilaterally
change the terms of payment.
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Contract Review Checklist
 Amendments: Any change to the fee schedule or capitation payment should be
negotiated and agreed to by the parties. The provider should try to negotiate for an
automatic annual increase in fees or in the capitation payment.
 Dispute Resolution: The contract should specifically provide for a dispute resolution
process that includes graduated steps (including informal negotiation, mediation,
and arbitration).
 Term: Does the contract specify a reasonable length of time for an initial term?
 Breach: Does the contract include a provision on breach and give the breaching
party an opportunity to cure?
 Renewal: Is renewal of the agreement contingent on renegotiation and agreement
on payment terms?
 Termination: Does the contract give the provider the ability to terminate the
contract if the provider does not agree to proposed amendments?
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Negotiating the Contract
• Because of antitrust concerns,
providers may not negotiate
together as a group with MCOs.
No
Talking!
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• Providers must generally make
independent, unilateral
decisions on whether to accept
contractual terms.
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Negotiating Strategies
• It is not enough to simply present
your terms and proposed
modifications to the MCO.
• Instead, the provider should develop
an individualized negotiation strategy,
including the following:
• A list of the provider’s objectives and
priorities for the contract
• Development of a list of deal points /
critical elements for negotiation
• Formation of the framework for
negotiations using the objectives,
priorities, and deal points
• Establishment of a bottom line for
withdrawal – when do you say “no”
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Negotiating Strategies
• A common error is bargaining
over positions.
• Occurs when one or both
parties get stuck in ensuring
that they win on their
positions, regardless of
whether the overall goal is
attained.
• Parties take extreme positions
in the expectation that they will
have room to bargain down.
• Results in a loss of focus on
underlying concerns.
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Negotiating Strategies
• Instead, focus on underlying
interests:
• Respond with questions, rather
than statements, and respond
specifically to the MCO’s concerns.
• Develop options for mutual gain
and generate a variety of
possibilities before deciding what to
do.
• Look for zones of agreement and
areas of overlap, emphasizing the
importance of maintaining an
ongoing relationship.
• Insist that resulting provisions be
based on some objective standard.
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When to Walk Away
• Set a “bottom line” based on factors
including:
• The importance of the MCO contract to the
provider’s operation
• The extent to which the contract embodies
the provider’s goals and objectives
• It may be best to walk away if the
provider does not trust the MCO or if the
two are not a good “fit”.
• The provider must walk away from any
contract that does not pass legal muster
in its final form (for example, it includes
provisions that are inconsistent with or
contrary to specific legal requirements).
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Contract Review Checklist
Preparing for Contract Review
 Has the provider:
 Received the entire contract, including all referenced documents,
attachments, and exhibits?
 Requested a copy of the MCO’s master contract with the payor?
 Established an MCO contract review team, including a “point person”
responsible for communications, a “lead,” and other members with specific
skills needed to review each portion of the contract?
 Considered the past performance of the MCO, under past contracts / business
dealings with the provider, and determined what additional protections may
be necessary in order to avoid past problems?
 Prepared a timeline for the contract review process and allotted sufficient
time for the review?
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Contract Review Checklist
Conducting the Negotiation Process
 To determine leverage, has the provider assessed its place and the
MCO’s place in the marketplace, with particular attention to the unique
benefits that the health provider will bring to the MCO’s network?
 Has the provider developed an individualized negotiation strategy that
leverages its strengths and its marketplace position, and takes into
account its weaknesses?
 Has the provider established a “bottom line”, essential deal elements,
and the point at which the provider is prepared to walk away from
negotiations?
FELDESMAN
TUCKER
LEIFER
FIDELL LLP
© Feldesman Tucker Leifer Fidell LLP. All rights reserved.
www.FTLF.com
Questions?
Adam J. Falcone
afalcone@ftlf.com
Feldesman Tucker Leifer Fidell LLP
1129 20th Street, NW – 4th Floor
Washington, DC 20036
(202) 466-8960
www.ftlf.com
FELDESMAN
TUCKER
LEIFER
FIDELL LLP
© Feldesman Tucker Leifer Fidell LLP. All rights reserved.
53
www.FTLF.com
Obtaining CME/CE Credit
• If you would like to receive continuing
education credit for this activity, please visit:
• http://www.pesgce.com/RyanWhite2012
FELDESMAN
TUCKER
LEIFER
FIDELL LLP
© Feldesman Tucker Leifer Fidell LLP. All rights reserved.
www.FTLF.com