TO: OSCA Members
FROM: Ohio State Chiropractic Association
Brennan, Manna & Diamond, LLC
DATE: October 10, 2014
RE: Humana Lawsuit
AKRON, OHIO – On September 17, 2014, the Ohio State Chiropractic Association (“OSCA”) filed a putative class action lawsuit against the national insurance company Humana, alleging claims of unjust enrichment, conversion, and breach of implied contract based on Humana’s recoupment of alleged “overpayments” made to non-contracted Ohio chiropractors providing care to Humana’s Medicare Advantage Plan enrollees. The suit also seeks a declaratory judgment and injunction prohibiting Humana from “recouping” alleged “overpayments” pending a decision on the merits of OSCA’s claims.
OSCA was joined in the lawsuit by Thaddeus C. Bosman, D.C., Inc. (“Dr. Bosman”), a Twinsburg, Ohio based chiropractic practice that has had funds “recouped” by Humana to offset for alleged “overpayments” made to the practice since December, 2012.
The lawsuit alleges that for several years, OSCA member chiropractors, including Dr. Bosman, treated Humana Medicare Advantage Plan enrollees and billed Humana at their reasonable and customary rate. These bills were subsequently paid by Humana at a rate above the applicable Medicare Fee Schedule. Over a period of time, OSCA member chiropractors relied on these rates in deciding to accept and treat Humana enrollees. Subsequently, and in some cases years after OSCA members had been paid for care provided to Humana enrollees, Humana alleged that it had “overpaid” amounts that were in excess of the applicable Medicare Fee Schedule. Humana then issued an ultimatum to non-contracted Ohio chiropractors- either refund any alleged “overpayment,” or be subjected to collection proceedings initiated by third-party debt collectors. Additionally, if non-contracted chiropractors continued to bill Humana for future services, Humana would off-set amounts it deemed to be “overpaid” from those bills.
In their lawsuit, OSCA and Dr. Bosman have argued that under applicable Medicare Part C regulations, non-contracted providers are to be paid “at least” the amounts they would be entitled to receive under Medicare Parts A and B. This statutory language sets a floor, rather than a ceiling, for the amount at which Humana was legally required to reimburse Ohio chiropractors. By establishing a higher rate through a course of dealing with Ohio chiropractors, Humana established an implied agreement to reimburse Plaintiffs at a rate higher than the applicable Medicare Fee Schedule. Through “recouping” alleged overpayments, Humana is breaching that agreement and unjustly enriching itself at the expense of Ohio chiropractors and their practices.
Due to Humana’s ongoing recoupment practices, many OSCA members are not being paid for care currently provided to Humana enrollees – instead, their reimbursement is being withheld to offset the alleged “overpayments” made years ago. This dilemma has caused many OSCA members to question whether they can continue to treat Humana enrollees, thereby threatening core values of patient choice and physician mobility.
OSCA’s lawsuit seeks to redress Humana’s illegal recoupment practices by pursuing declaratory, injunctive, and equitable relief on behalf of its membership as a class. The class that OSCA and Dr. Bosman seek to represent is composed of all OSCA member chiropractors and/or chiropractic practices who, as far back as the applicable statute of limitations permits, (a) provided care to Humana Medicare Advantage Plan enrollees, (b) received payment from Humana at a rate above the standard Medicare Fee Schedule rate, and (c) have subsequently had payments from Humana reduced to offset the amount of alleged “overpayments” previously paid or have been referred to Humana’s outside collections agency for recovery of alleged “overpayments.” If your practice satisfies the requirements of this definition, you may be entitled to relief in the event OSCA’s suit is certified by the court as a class action and is ultimately successful.
The lawsuit is currently pending before the Honorable Thomas Parker of the Summit County Court of Common Pleas. The case is captioned, Ohio State Chiropractic Assn., et al. v. Humana Health Plan, Inc. et al., and has an assigned case number of CV-2014-09-4291. Attorneys John Childs, Jeana Singleton, and Daniel Rudary of Brennan, Manna & Diamond, LLC filed the lawsuit on behalf of OSCA, Dr. Bosman, and the putative class of Ohio chiropractors. A copy of the Amended Class Action Complaint is enclosed with this release. Further information regarding the lawsuit, including access to all court filings, may be obtained by visiting the Summit County Clerk of Courts website at http://www.cpclerk.co.summit.oh.us/welcome.asp.