Dating slang is helping behavioral health professionals describe a troubling evolution in payer relations.
Payer ghosting.
In dating, someone “ghosts” another person when they abruptly stop communicating despite previous interest. In this context, payer ghosting occurs when payers stonewall providers on claim reimbursement. This can be a trickier challenge for providers than the typical payer issues like other forms of delayed or denied payments.
Contracts often have recourse for certain actions, including payer denials, prior authorizations, and special investigations unit (SIU) letters, to name a few, but this isn’t the case for payer ghosting.
Often, there’s no clear recourse when a payer simply stops engaging with a provider on reimbursement.
For example, payers have been sending special investigation clawback letters to behavioral health providers over the past few years, Tani Weiner, co-chair of law firm Polsinelli’s behavioral health group, told Behavioral Health Business. In response to those claims, providers could leverage factual and legal arguments and appeal rights triggered by adverse determinations to challenge payer claims.
“[That letter] is often an opening bid; subsequent negotiations typically reach a resolution for some number of cents on the dollar, allowing providers to buy their peace, adjust billing practices if needed, and be done,” Weiner said. “The new insidious thing is this ghosting stuff.
“Payers are not telling you what’s happening; there seems to be intentional bureaucracy on the front end. There is little or no information on reasons for blockages or opportunities to appeal.”
Weiner cited clients experiencing frustrating payment delays and ambiguous payer explanations, leading to the necessity of legal intervention.
Several sources say that they can’t get anyone at their payer partners to respond to their outreach, a notably rankling behavior from an industry that increasingly vaunts value-based care talking points.
Such behaviors aren’t new. The perceived necessity of parity laws shows a history of inequity in how health plans treat behavioral health.
“There is clearly an effort on the managed care/health plan side to delay and deny care in the behavioral space,” Shawn Coughlin, president of the National Association for Behavioral Healthcare, told BHB in a conversation about parity. “The only reason they’re doing it that way is because they really don’t want to spend those dollars, even though their premium payments have been including premiums for the full scope of benefits since parity came online.”
The incentives
At the macro level, payers approach the behavioral health industry with significant leverage. At the micro level, payers often know how far they are willing to go with industry tactics before they’re likely to experience a consequence. And even then, it’s worth it to deal with the consequences and do as they will.
“Payers seem willing to push the envelope further with behavioral providers given weak parity enforcement and the disproportional organizational and legal resources relative to the typical behavioral provider,” Weiner said.
The behavioral health industry is notably fragmented, while the health insurance industry is highly consolidated.
Just four companies — UnitedHealth Group (NYSE: UNH), Elevance Health (NYSE: ELV), CVS Health (NYSE: CVS) and The Cigna Group (NYSE: CI) — control 48% of the health insurance market in the U.S. At the local level, 91% of American metros see one payer control 30% of the market, while one payer holds half of the market in 48% of metros, according to research by the American Medical Association.
Health plans also have a powerful lobby. The top two spenders across the insurance industry represent the health insurance segment, according to data tracking site Open Secrets.
“I’m absolutely sure it’s happening: These companies flout regulations,” Wendell Potter, a long-time payer executive turned industry critic, told BHB. “They pay little attention to the laws that are on the books, whether they’re federal or state laws, and they will risk a lawsuit because they’ve got legions of lawyers.”
Potter was a communications executive for Humana and Cigna for about 20 years, calling himself these companies’ “chief propagandist.”
He acknowledged that large health plans have “shortchanged behavioral health clinicians for years and years and years” despite federal parity laws that call for behavioral health benefits to be treated with the same deference as physical health benefits.
And payers often account for the small likelihood that underfunded and understaffed regulators will punish them for bad actions and are willing to take that risk if it benefits them: “It’s just baked into the cost of doing business,” Potter added.
On the provider side, the industry’s lack of parity and on-average tight profit margins usually leave providers simply hoping things work out and sorting out how to deal with the cash shortfall. Further, the cost of challenging bad-payer behavior often makes doing so a nonstarter.
“Maybe they [payers] hope that providers aren’t going to have [a revenue cycle management partner] or a Polsinelli in their Rolodex and aren’t going to have the tools to navigate through the legal stuff that says [payers] can’t leave them in limbo,” Weiner said.
The dominant incentive for payers is the bottom line. The market-leading payers are publicly owned companies with pressure from Wall Street to raise share prices and deliver higher profits.
And health plans have done just that over the years.
In the past 10 years, the revenue and profits of the largest publicly traded health plans have increased by 300% and 287%, respectively, according to Potter’s analysis of public filings.
Top health plan executives also have personal incentives to prioritize profitability. While it varies across companies, company shares make up the vast majority of a health plan executive’s compensation and performance incentives, Potter said.
Increases in the use of behavioral health benefits may also inspire further actions.
For mental health services alone, the use of services covered by commercial health insurance in 2022 increased by 39% compared to 2019, primarily driven by telehealth. Spending on said services increased by 54% during the same period, according to health claims analysis by the RAND Corp.
“If greater utilization of health services drives higher health care spending, insurers may begin pushing back on the new status quo,” Jonathan Cantor, a policy researcher at RAND Corp., said in a news release. “Insurers may look for ways to curb costs and that could mean less flexibility about using telehealth for mental health services.”
Big picture solutions to payer ghosting
Several sources indicated that federal and state officials are strengthening parity enforcement, and there is increasing momentum behind this.
At the beginning of the month, the State of New York announced it had fined Medicaid managed care organizations (MCOs) for improperly handling behavioral health claims. Experts tell BHB that other states could follow suit.
At the federal level, the Biden administration is developing a proposed rule that would significantly tighten the enforcement and oversight of parity, providing a new level of detail to rules that payers had previously criticized as too vague.
“We’re very hopeful that we’ll see those final regulations come out here in the near term and that they will not be watered down,” Coughlin said.
Parity will remain a top priority, if not the defining priority, in the regulatory outlook for behavioral health in 2024, according to industry insiders.
Yet, parity has been in the law for decades, highlighting the problem of relying on regulatory solutions.
“An agency has to be responsible for compliance and enforcement. But those agencies are typically under resourced and, in many cases, also captured by the industry. That’s very common,” Potter said. “They’re under enormous lobbying pressure.”
Potter cites payers’ profit motives as the underlying motivation for these behaviors. A solution to the root cause of the problem would require the radical solution of eliminating private health insurance.
“We’re paying the consequences of turning our health care system over to Wall Street under the assumption that for-profit companies can do a much better job than nonprofits,” Potter said. “I don’t think we as a country have come to understand that health care is different from other sectors of the economy.”
What about organizations?
For individual organizations, there are a handful of tactics that may help get them around payer ghosting.
Ross Burris III, an attorney at Polsinelli who focuses on compliance and payer issues, said a good place to start overcoming payer ghosting is to try to bypass the formal channels to reach decision makers at a payer.
“Go to the contracting reps; call that CFO you met at that conference,” Burris said. “A lot of times we were not just getting the right person on the phone. We may be dealing with someone who feels strongly about the practice, but they’re not the final decision maker.
“When we get it elevated to people like the general counsel’s office, or maybe some market or contract negotiation teams, they can get the attention of the right people.”
In the meantime, providers must explore all rights afforded to them for timely payment in their contracts or state law. This review also includes understanding the right venue to take legal action. Most contracts require disputes to go through arbitration or other alternative venues.
Most coding or other claim processing issues quickly resolve once a provider takes action, Burris said. However, issues that center around fundamental disputes over contract language often proceed through a legal process.
The strongest approaches involve specific contract language and strong evidence of a breach of contract. When a payer is operating in a gray area, this is the only way to press the issue of payer ghosting.
“If you can find the right person at the payer, [revenue cycle management] data can sometimes be compelling if you can really make it watertight,” Gregory Keilin, co-founder and chief strategy and growth officer at Prosperity BPO, told BHB.
Making that case watertight requires deep self-assessment within a provider’s operations to ensure that the provider or their contractors don’t cause an issue. Then, a provider has to assess if a payer’s reimbursement behavior has shifted from the historical norm.
Specifically, Prosperity reviewed claims data from January 2021 to September 2023, covering $1.56 billion of claims for select behavioral health clients. It found that shifts in reimbursement patterns by two major payers in August and September were significant enough to throw off the rate at which claims were paid in 90 days or less in the cumulative data.
The same data also shows a drop in the share of claims that were formally denied, again tied to the same two payers.
“And yet, the number of paid claims and relative expectations also went down,” Keilin said. “So, it’s not the case that the pie was just shifting between paid and denied: It’s that the whole pie of adjudicating claims has shrunk.
“That is what leads us ultimately to the conclusion that what’s happening here is that the payers are just holding on to the claims and not resolving them one way or another.”
This leads Prosperity to question if payers have “changed their process in a way that is negatively impacting our provider partners, or alternatively, is deliberately punishing our provider partners for something.”
Still, providers often face self-reinforcing barriers to seeking redress for payer ghosting and other reimbursement disputes in court or through mediation. Even when the provider prevails in these disputes, payers frequently do not cover attorney fees. So, providers often forgo getting money because they don’t have that money to operate the company and also pursue legal options. This is especially true for small and mid-sized businesses; large-scale providers are not immune, Weiner said.
“This just erodes [providers’] margins, requiring them to lawyer up, to go and pound through the wall like the Kool-Aid man,” Weiner said. “We are happy to go toe-to-toe on behalf of the provider community; the insidious thing about [payer ghosting] is this: when payers really go egregious, it can be easier to recognize and challenge.
“But when they are opportunistically dragging a provider’s revenue cycle, it can be harder to spot and put the right countermeasures in place.”
Companies featured in this article:
National Association for Behavioral Healthcare, Polsinelli, Prosperity BPO, Wendell Potter
