By Paula Schmitz, Ph.D., J.D., M.B.A., C.F.A., Of Counsel, Garlo Ward, P.C.
www.garloward.com
Posted September 5, 2003
Ooo I love to dance a little sidestep,
Now they see me, now they don’t,
I’ve come and gone,
AND Oooo I love to sweep around the wide step,
Cut a little swathe and lead the people on.”
– “The Sidestep,” sung by the Governor in The Best Little Whorehouse in Texas
Have you been paid by Tricare lately?
If your answer is “no” you are not alone. Whether you’re a dentist trying to collect on a claim for a crown or a physician trying to collect on a claim for surgical fees on behalf of your patient or a skilled nursing facility trying to collect on a claim for skilled nursing care on behalf of a resident, Tricare will impress you with their inventiveness when it comes to not paying claims for benefits. Sure there are rights to appeal non-payments of claims but first you should realize that Tricare doesn’t even play by the twisted rules used by private insurance companies. Tricare operates in its own little world courtesy of federal law so when you decide to pursue an appeal you had better prepare yourself to go through the looking glass with little Alice to a world where nothing is what it seems.
Tricare is the successor benefits program for Champus and under the Department of Defense provides medical insurance coverage for members of the military and their families. During the implementation of the change from Champus to Tricare, the advantages of Tricare coverage and in particular, Tricare for Life coverage for retired members of the military and their families, were highly touted to beneficiaries. The fact that this coverage in reality falls far short of beneficiaries’ expectations should not be too surprising but the particular burdens placed on providers as a result of how Tricare benefits determinations are handled are beyond any experience you may have had with a private insurance carrier.
The draconian nature of Tricare benefits determination is particularly burdensome for skilled nursing facilities. The Tricare reimbursement manual is 966 pages long and the Tricare policy manual is 974 pages long which does not bode well for streamlined administration of the program, but the obviously burdensome administrative aspects of Tricare are not the biggest problems for providers and beneficiaries. Three administrative aspects of the Tricare program all but preclude the usefulness of Tricare as a source of secondary payment to Medicare for almost all Tricare beneficiaries receiving skilled nursing care.
- Problem One: How Tricare defines “custodial care.”
Custodial care is not a covered benefit under Tricare. Tricare defines custodial care as any care rendered to a patient (i) who is mentally or physically disabled and that disability is “expected to continue and be prolonged”; (ii) who requires a protected, monitored, or controlled environment in or out of an institution; (iii) who requires assistance to “support the essentials of daily living”; and (iv) who is not under “active and specific medical, surgical, or psychiatric treatment that will reduce the disability to the extent necessary to enable the patient to function outside of the protected, monitored or controlled environment…”. Well (i) though (iii) pretty much describe the needs of most residents at skilled nursing facilities and (iv) is a determination that is fraught with controversy. Obviously those providing the care steadfastly maintain the purpose of the care is to reduce disabilities and that a reduction in disability and recovery of ability, no matter how limited, has value. Tricare generally chooses to disagree and has vested interest in concluding that a resident has no possibility of recovery to the point that they can leave the facility and live in an environment that does not constitute a “protected, monitored or controlled environment.” Realize even if your resident recovers enough to go home if that home environment is “protected, monitored or controlled” that recovery is not substantial enough for Tricare and they will not pay that claim.
- Problem Two: Tricare’s use of the concept of “waiver of liability.”
Tricare imposes a concept of “waiver of liability” that is particularly difficult for providers to even begin to comprehend. If you are a non-network provider under Tricare (that is you are a certified provider and have not signed an agreement to treat Tricare beneficiaries and accept no more than the maximum benefits payable under Tricare as reimbursement for your services) and services you provide are excluded from reimbursement as not being covered by not only will Tricare not pay you but Tricare will tell your resident (the Tricare insured or beneficiary) that they don’t have to pay you either. The alleged rationale for this determination is the provider “should have known” based on acceptable standards of the medical community that such services were not medically necessary. The problem with this rationale is what Tricare sees as not medically necessary is not what other insurance providers see as not medically necessary, and with any other insurance provider if they decide that your services as a provider are not a covered benefit they don’t go tell your resident, their insured, not to pay you. It even gets better, the waiver of liability is retrospective, so even if the services have been rendered and you had no idea services are not covered, the determination and imposition of the waiver of liability applies to all the services you have rendered in the past. What if you are a network provider, does that save you? Well, no, because of Tricare’s hold harmless provisions in their provider agreement you are not even allowed to bill beneficiaries for benefits not covered by Tricare and as a provider you are presumed to have perfect knowledge of what they will determine is a covered and non-covered benefit.
- Problem Three: Conditions placed on the beneficiary’s agreement to accept responsibility for payment.
So Tricare decides your skilled nursing services are “custodial care” and they aren’t going to pay and they tell your resident, their insured, that he or she does not have to pay, what next? You probably have the signed agreement from your resident, their insured, entered into when you admitted the resident into your facility where by the resident agreed to pay for services rendered by you if the resident’s insurance did not pay. So the resident has signed a document agreeing to pay whatever costs the insurance company decides not to pay, you are covered, right? Wrong because Tricare says that agreement is not binding on your resident. Tricare says in order to have a binding agreement with the resident, you must have the resident enter into a new agreement, contemporaneously with rendering the services specifically identified as not being covered by Tricare, setting forth yet again that the resident agrees to pay the charges. Since you as a provider did not know (but as Tricare presumes “should have known”) the services weren’t covered by Tricare, getting such a specific agreement prior to rendering the services is a problem if not an out and out impossibility.
The problem with Tricare is this: beneficiaries are presumed to know nothing and providers are presumed to know everything. Thus following the logic of Tricare this means a priori providers will always take advantage of beneficiaries by billing them for services they do not need or want. Ergo, Tricare pays nothing. Makes perfect sense doesn’t it?
For more information on this subject, contact Paula Schmitz with your specific question(s).
All information in this article and on this site is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney. All lyrics used for educational purposes only.
Copyright 2003 by Garlo Ward, P.C., all rights reserved.
Austin, Texas 78752-3714 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
