This article is sponsored by Polsinelli. It is based on a discussion with Bragg Hemme, Behavioral Health Co-Chair, and Ross Burris, Shareholder at Polsinelli. This discussion took place on March 20, 2025, at the BHB VALUE Conference.

Behavioral Health Business: I’m thrilled to be moderating this conversation about legal strategies for protecting your revenue, fighting denials, and making payments recoupment-proof in a value-based world and beyond. We’re really grateful to Polsinelli for bringing this conversation to VALUE. Polsinelli has been such a great partner for us—on events, on stories—and I’m eager to dig into this topic.

Joining me on stage to my left is Bragg Hemme, Behavioral Health Co-Chair for Polsinelli, and to Bragg’s left we have Ross Burris, Shareholder at Polsinelli as well. Before we dig into the topic, could you each provide some background on yourselves, your work in the behavioral health space, and any areas of particular focus?

Bragg Hemme: I’m the Co-Chair of our Behavioral Health Group, and I focus most of my time on reimbursement and regulatory compliance, with a subspecialty in behavioral health. I’m based in our Denver office.

Ross Burris: I’m Ross Burris, out of our Atlanta office. I’m one of the Co-Chairs of our Reimbursement Audits and Dispute Group. Most of my time is spent helping people deal with audits, collecting for claims that were unpaid or underpaid, and managing all levels of payer relations on behalf of providers. I always say: Bragg helps you get the money, and I help you keep the money.

BHB: We’ll keep this conversation fairly conversational, so I won’t direct every question to one of you specifically. If you have thoughts, just dive right in. We’ve got 30 minutes to really dig into the topic.

So, starting with question one: When it comes to prospective protection of revenue, what are the top three things you typically tell your clients?

Hemme: I’ll jump in, because this is one of my favorite topics—prospective compliance. I might have more than three tips, but really, I think documentation is key. A number of panelists across today’s agenda have talked about documentation and best practices. It’s the cornerstone for protecting payments—making sure documentation is accurate and complete.

In a value-based world especially, documentation is how you gather additional information that may affect metrics or quality measures—and potentially increase your payment. It all goes back to documentation.

Second, knowing your payers and their individual rules is essential. They’re different for every payer, and they’re also different by modality. For example, how you bill IOP for mental health versus substance use can vary widely. Payers are increasingly acting as enforcers of state laws, so you also have to know your state regulations.

We’re seeing payers deny claims based on licensing issues—even when we disagree about whether licensing is required. We spend a lot of time arguing over state rules, corporate practice of medicine, and corporate practice of therapy. So being aware of those rules ahead of time is crucial.

Third, tracking denials and metrics. We have so many scenarios—and I was just swapping anecdotes at the happy hour last night—where providers say, “We’re getting all these denials, we’re not getting paid, we need help.” Then we ask, “OK, send us a list of claims and denial reasons,” and they say, “Give me a minute.” There’s no good tracking system in place.

Knowing why your claims are being denied—whether it’s a prior auth issue, a claim denial, or a short pay—is critical.

Actually, I’ll add one more: metrics. In value-based care, it’s not just about the claim anymore. It’s also about outcome measures, treatment quality metrics, and other data you may submit with—or separately from—the claim. Payers on the medical side have been doing this much longer, and they’re ready to audit. So it’s important to track those metrics and ensure they’re accurate.

BHB: So—documentation, robust metric tracking, knowing your payers and state rules, and understanding your denials. All great tips.

Burris: That pretty much covers it. What’s interesting is that when disputes arise, people often know something’s wrong—they’re tracking enough to realize they’re being underpaid or denied. We are most effective resolving these issues legally when providers have good supporting documentation and it can be challenging when this is not the case.

BHB: And it must be frustrating because just getting to that conversation with the payer is tough. So when you get there, you want to be armed with everything.

Burris: Exactly. It can be hard just getting them to the table. So if you do, come prepared.

BHB: What are the best ways to respond when a provider receives a payer audit request or ADR?

Burris: I always tell people to treat your audit like an appeal. If they’re asking for additional documentation, don’t just throw it in a box—virtually or physically—and send it off. Gather everything that supports the claim.

If something needs explanation, use a cover sheet. It doesn’t need to be a long letter, just a page that tells the reviewer what you’ve provided and how it meets the criteria. That can go a long way toward avoiding additional ADRs—or even getting you off the audit altogether.

Hemme: Yes—and sometimes, when you’re gathering documents, you find an error. You may need to proactively refund certain claims, and that’s something you can include in your cover letter. It shows the payer that you’re serious about compliance.

Other times, they may owe you money, so your strategy might change. But the goal is always to make it easy for the reviewer to say, “This provider is doing it right.”

BHB: What should providers do if they’re seeing an unusually large number of denials or short pays?

Hemme: Know the reason. That’s the first step. Sometimes it takes conversations with payers—or legal involvement. But you can’t take the next step until you understand what’s going on.

Then, appeal. That’s your biggest protection. You have to appeal every denial, because that’s what preserves your rights. If you don’t, the payer—or a court—can later say you didn’t follow the process, and that’s the end of the road.

Burris: I’d add that every organization should have an audit response process in place. Who receives the request? Who’s responsible for routing it? Is it being taken seriously?

We had a case where someone in the billing department kept getting requests, but no one from compliance or legal even knew. By the time leadership found out, the audit had spiraled.

Having a plan—especially for how to route these requests—is critical, whether you’re a small or large organization.

Hemme: We’ve created template appeal letters for revenue cycle staff so they can respond immediately—electronically, automatically—just to preserve rights. Even if it’s a simple form, it’s worth having.

Burris: Yeah, if you wait too long, and later file legal action, the first question a payer’s attorney or arbitration panel will ask is: “Did you appeal?” If the answer is no, you’d better have a very good reason.

BHB: Do you have a stance on AI for documentation—either generative or for backend use?

Hemme: As a compliance lawyer, it makes me nervous. It’s going to be a big tool, especially for tracking value-based metrics. But we need to audit for accuracy. And we need to know how the payers are using it, too.

Burris: Yes—AI has long been used to identify billing anomalies. But now we’re seeing it used for reviewing documentation itself, which is concerning.

There are legal arguments—especially in Medicare cases—that AI shouldn’t be used for clinical reviews. And I think those arguments apply in the commercial space, too.

We’re currently investigating how payers are using AI in some audits. If they’re relying on non-human review for documentation related to patient care, that’s a red flag.

Hemme: And there’s a broader compliance trend around “upcoding.” The administration is focused on it—though it’s not always the traditional sense of billing a level 3 E&M as a level 5.

Now, it’s about diagnosis codes. AI tools scan documentation and find related conditions to boost reimbursement. That can help—but if the codes aren’t properly documented, it becomes a risk area.

BHB: On the AI front, we’ve seen this trend in Medicare through our other publications. Is this concern growing in commercial insurance too?

Burris: Yes, absolutely. It’s spreading into managed care. And it’s something we’re investigating in almost every litigation now. We’re always asking: Did the payer use AI in the audit? Was it used appropriately?

BHB: Last year at VALUE in Miami, I remember talking with Tani from your team about payer ghosting. That was a huge concern in 2024. Is it still common?

Burris: We’re seeing less ghosting now. Instead, it’s more denials and underpayments.

We used state prompt-pay laws to force responses in a lot of ghosting cases. Now, payers are “responding” by issuing denials or audit requests, which technically satisfies those laws.

It’s always shifting. I swear, sometimes it feels like the payers go to conferences and decide which new tactic they’ll all try next.

One thing we’re seeing again is payers sending out-of-network payments directly to patients. We’ve had cases where patients received checks for six-figure inpatient stays. Some return the money. Others deposit it and disappear.

In the substance use space, that’s especially troubling. We’ve even seen tragic cases where patients used that money to relapse. It’s a practice that disappeared for a while—but it’s back.

BHB: If I’m a provider experiencing payment issues, when do I bring in legal counsel?

Hemme: Many of my clients meet with me regularly—weekly or biweekly—just to gut check what they’re seeing. As issues escalate, I loop in Ross.

Burris: If it’s one-off, you can probably handle it. But if it’s the tenth ADR this month on the same issue, it’s time to call your lawyer.

What’s interesting is that we often get multiple calls on the same issue within weeks. That’s how we spot trends.

Hemme: And sometimes, just putting a legal letterhead on an appeal helps. It’s a low-cost way to get traction—especially with those small denials that add up.

Burris: Some clients also like having us play “bad cop” so they can preserve good relationships with their payer contacts. Let us fight the fight behind the scenes.

BHB: What’s the future of out-of-network reimbursement? Are more SUD providers moving in-network?

Hemme: Yes. For a while, people pursued out-of-network strategies. Now they’re shifting back to in-network to improve payment consistency and ease prior auth workflows.

Those contracts can be tricky—so have them reviewed by counsel. There are often hidden provisions that can create problems later.

Burris: I agree. In-network providers often get better attention. Payers want to keep them happy-ish. Plus, payers are using strategies to discourage out-of-network usage—like sending checks to members.

BHB: Since we’re at VALUE—how has value-based care changed how providers protect revenue?

Hemme: It’s added more layers. You’re not just auditing claims anymore. You have to audit metrics, outcomes, patient satisfaction—depending on your contract.

Having a system to track, evaluate, and submit those metrics is critical to ensure proper reimbursement.

Burris: And to answer a chat question—yes, Blue Cross is one of the payers sending out-of-network checks to members. We’ve had to sue members in some cases, which no one wants to do.

These are six-figure stays. It’s not a $15 copay—it’s major revenue. The payer puts the patient in an impossible position. No provider wants to sue a former patient, especially not in behavioral health.

BHB: Especially when the relationships are so longitudinal.

Burris: Exactly. These patients don’t need additional stress—or temptation.

BHB: Last question: If we have documentation and reasons for increased days based on ASAM criteria, but the insurance doctor denies it—not for medical necessity—what’s our recourse?

Hemme: We see this a lot, and it’s tough. But there are escalation paths—especially if it’s Medicare or Medicaid.

We’ve used parity arguments and appealed using federal and state protections. Some payers say you don’t have a private right of action under parity, but we still make those arguments.

Don’t stop after a peer-to-peer. Keep pushing. There are tools available.

BHB: Final thoughts? Any last words of advice?

Hemme: There’s a lot to track—state laws, payer rules, federal changes, telehealth, Medicaid cuts, the Medicare Advantage shift. And embedding behavioral health in primary care adds another layer.

Make sure you have the right people and systems in place to adapt quickly.

Burris: I’ll echo that—and say: take control of your data. Understand your denials, your recoupments, your claims. You work hard. Your providers work hard. You deserve to be paid. And good data is how you make that happen.

Behavioral health providers have unique business models, care delivery and regulatory issues that require focused legal knowledge informed by real-world experience in the behavioral health space. Polsinelli’s Behavioral Health Group, one of the largest in the country, is a cross-functional team with significant experience completing major transactions and resolving complex regulatory matters involving behavioral health providers.

As one of the largest health care practices in the country with integrated Health Care M&A and other full service capabilities, Polsinelli attorneys partner with behavioral providers, investors and other stakeholders to navigate a full range of legal issues in the rapidly evolving behavioral health space. To learn more, visit: https://www.polsinelli.com/.