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FLORIDA DOCTOR FILES SUIT AGAINST AETNA

In the latest battle over getting paid for emergency room treatment, a Pompano Beach orthopedic surgeon is leading a federal lawsuit alleging that Aetna and three other health insurers are engaged in a criminal conspiracy to pay only a fraction of doctors’ charges.Peter Merkle and his attorneys are asking U.S. District …

In the latest battle over getting paid for emergency room treatment, a Pompano Beach orthopedic surgeon is leading a federal lawsuit alleging that Aetna and three other health insurers are engaged in a criminal conspiracy to pay only a fraction of doctors’ charges.

Peter Merkle and his attorneys are asking U.S. District Judge James I. Cohn to certify a classaction for all doctors having similar problems with Aetna, Neighborhood Health, Vista Healthplans and Blue Cross Blue Shield of Florida’s Health Options.

The health plans have yet to file responses in court and most have yet to be formally served, but their spokesmen told The Herald Thursday that their payments in such cases are legal and customary.

”Aetna typically pays more than Medicare for what is described in this particular complaint, and we believe that we are paying a reasonable amount of money under Florida law, which recognizes that paying arbitrary or unreasonable amounts are not required,” said Aetna spokesman David W. Carter.

”If they pay you whatever they feel like, you might as well close your doors and go fishing,” Merkle said Thursday in a telephone interview. He said he hesitated about suing insurers “because you don’t want to bite the hand that feeds you. But then I realized that the hand wasn’t feeding me, it was stealing from me.”

The core issue, which providers band insurers have been fighting in the courts for several years, concerns cases when a person with health insurance is rushed to a hospital that is out of his insurer’s network.

In such cases, the hospitals — and the doctors who are also out-of-network — generally bill the health plans at their full rates.

The insurers complain that these rates are often obscenely high and have frequently refused to pay them.

Hospitals counter that insurers are trying to force them into unfair contracts that would bring them into the network or — worse — make contracts unnecessary if insurers can simply pay what they feel like.

The disputes have erupted into bitter court battles. On the east coast of Florida, a case between HCA hospitals and Vista ended up being settled out of court. On the Gulf Coast, a lawsuit between Blue Cross Blue Shield of Florida and the BayCare Health System of Clearwater continues to be contested in several courts and is being closely watched by the entire industry.

In the BayCare case, the argument is over what constitutes ”usual and customary” charges, which are required by Florida law for out-ofnetwork providers. In 2003, an arbitrator from a firm called Maximus concluded that BCBSF met the law’s provisions by paying 120 percent of Medicare rates.

BayCare is still fighting the so-called Maximus decision in the courts, but it appears that health plans may now be using it as a benchmark for out-of-network payments.

”The Maximus decision reinforced our belief that our reimbursement is in accordance with Florida statutes,” said BCBSF spokesman Bruce Middlebrooks.

”VISTA pays nonparticipating providers for emergency services in accordance with state and federal law,” wrote spokeswoman Pam Gadinsky in an e-mail.

Out-of-network doctors face the same problems as hospitals, but as small businessmen many feel they don’t have the resources to fight the insurers.

”After you’ve written four or five letters to the insurance company and then spent an hour on the phone on hold, most doctors just write a lot of it off as bad debt,” said Alan Routman, a Fort Lauderdale orthopedic surgeon and former president of the Broward County Medical Association.

Merkle was an exception. His complaint says that in the summer of 2003 he saw Aetna and other insurers dramatically reduce their payments to him.

His attorneys used the example of a complicated wrist fracture, which Merkle charges $1,850 to treat. Aetna, which had been paying $1,168, cut its check to $668.62. Health Options paid $469.69 for the procedure, Vista $587.27 and Neighborhood Health $604.31.

The similarity of these payments has caused Merkle’s attorneys to charge that the insurers are engaging in a ”pattern of racketeering activity” and are carrying out ”conspiratorial efforts” to lower doctors’ payments.

Bruce S. Rubin, spokesman for Neighborhood Health, called the allegations of conspiracy “ludicrous. We’ve been paying a certain percentage of Medicare for years. It’s standard procedure.”

One of Merkle’s attorneys, Larry Kopelman of Fort Lauderdale, acknowledges that some gross provider charges can be astonishingly high. “But what the insurance industry is doing is wrong. To simply, unilaterally pick a figure to pay is wrong. Our intent is to hopefully arrive at a usual and customary charge that’s fair to everybody.”