Plan Sponsors Beware – Lawyers Preparing Lawsuits

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Employers who fail to prudently manage health plan assets creates a lucrative opportunity for plaintiff’s attorneys………Significant liability for companies and plan trustees…………..

Article Contributed by Brian Klepper

This little-known legal risk could force big changes to our dysfunctional health-care system

Lawyers are preparing lawsuits over waste and fraud in health care — invoking Erisa, a law better know for retirement benefits

How much of health care is wasteful?

By DaveChase & SeanSchantzen

Erisa, the Employee Retirement Income Security Act, has been around since the Ford administration. Most people know the law in relation to retirement benefits, but it’s emerging as an unexpected, yet high-potential, opportunity to drive change in the dysfunctional U.S. health-care system.

The law sets fiduciary standards for using funds for self-insured health plans, which is how more than 100 million Americans receive health benefits. Health plans for companies with more than 250 employees are self-funded because they are generally less costly to administer. As a result, just over $1 trillion in annual health-care spending is under Erisa plans or out-of-pocket by Erisa plan participants, and the amount spent on Erisa health plans is roughly double the amount spent on Erisa retirement plans.

This makes Erisa plans an attractive target for operational efficiencies. It’s one of the only buckets of operational expenses that most companies haven’t actively optimized. For those that don’t get on top of this, it could also be a source of potential liability for companies and plan trustees.

Erisa requires plan trustees to prudently manage health plan assets. Yet very few plans have the functional equivalent of an Erisa retirement plan administrator that actively manages and drives effective allocation of plan investments. This person or team would have deep actuarial and health care expertise to enable them to deeply understand and negotiate potential high-cost areas of care, something traditional human-resource departments lack.

At the same time, it’s broadly estimated that there is enormous waste throughout the system. The Economist has reported that fraudulent health care claims alone consume $272 billion of spending each year across both private plans and public programs like Medicare and Medicaid. The Institute of Medicine conducted a study on waste in the U.S. health-care system and concluded that $750 billion, or 25% of all spending, is waste. PwC went so far as to say that more than half of all spending adds no value.

Increased outside scrutiny on how ERISA-regulated health plans spend their dollars could create immense potential liability for both company directors and health insurers across the country. Lawyers, auditors and others are catching on to this and taking action to get ahead of it or are advancing potential new categories of litigation that could result in hundreds of billions in damages.

In just the last couple of months, we at the Health Rosetta Institute, a nonprofit focused on scaling adoption of practical, nonpartisan fixes to our health-care system, have learned of some key events that will likely further increase scrutiny on Erisa fiduciary duties.

First, two Big Four accounting firms have refused to sign off on audits that don’t have allowances for Erisa fiduciary risk. A senior risk management practice leader at one of those firms told a room of health-care entrepreneurs and experts that Erisa fiduciary risk was the largest undisclosed risk they’d seen in their career. As more accounting firms start to require this, it will change how employers manage Erisa health-plan dollars.

Attorneys are building litigation strategies around alleging the plan administrators who actively manage health dollars have breached their Erisa fiduciary duties by turning a blind eye to fraudulent claims.

Second, independent board directors have quietly sounded the alarm to three company auditors about this growing issue, recognizing the potential for personal financial liability that director and officer insurance policies may not cover. We expect to see more of them focusing on this issue, given that health-care spending is roughly 20% of payroll spending for most companies.

Third, attorneys are building litigation strategies around employers filing suits against their Erisa plan co-trustees, the plan administrators who actively manage the plan’s health dollars, alleging that they breached their Erisa fiduciary duties by turning a blind eye to fraudulent claims. We expect the first of these cases to be brought this year and significantly more in the next couple of years. One firm we’re aware of is working on cultivating more than 50 of these cases.

The implications of this third trend could be enormous. If boards and plan trustees know fraud could exist and don’t take action to rectify the issues, they could open themselves to liability from shareholders and plan beneficiaries. The scale of damages just for fraudulent claims could be on the magnitude of lawsuits over asbestos and tobacco. A very conservative estimate of what percentage of claims are fraudulent is 5% (many believe 10%-15% is more accurate). Employers spend over $1 trillion a year on health care. If you take the low-end estimate (5%) and extrapolate over the statutory lookback period for Erisa (six years), that would be $300 billion.

These legal threats could force employers to actively manage health spending the same way they manage other large operational expenses. We’ve already seen companies doing this, reducing their health-benefits spending by 20%-55% with superior benefits packages.

They use a variety of approaches, but most are relatively straightforward and focus on proven benefits-design solutions that make poor care decisions more costly and better care decisions less costly to encourage the right behavior. Most importantly, they don’t focus on shifting costs to employees.

Three high-potential areas involve primary care: actively managing high-cost care to move it to high-quality, low-cost care settings; directly addressing drug costs; and incentivizing wise care decisions. Here are a few repercussions these changes for companies and investors.

As more procedures move from expensive hospital settings to lower-cost independent ambulatory surgery centers, this means lower margins at for-profit hospitals, threatening return assumptions on hospital revenue bonds, and growth potential for ambulatory care categories.

Tackling pharmacy spending puts downward pricing pressure on pharmacy-benefits managers. An indirect example of the consequences of this is the face-off between drug middleman Express Scripts Holding Co. ESRX, -0.34%   and health insurer Anthem Inc. ANTM, +0.23%

More active management of health care, self-insurance, and lower costs by employers reduces revenue and margins at public insurance companies, threatening core revenue streams. This is compounded by self-insured employers moving to independent plan administrators not tied to traditional insurers.

Surprisingly, the most sustainable and high-impact of these approaches will benefit employees as well. Most wasted spending in health care that directly affected patients is the result of overuse, misdiagnosis, and suboptimal treatment.

Time and again, we’ve found that the best way to slash costs is to improve health benefits

And isn’t better health care at a lower cost the best outcome for all of us?

Dave Chase is a tech entrepreneur and author turned health-care industry investor. His book “The CEO’s Guide to Restoring the American Dream: How to deliver world-class health care to your employees at half the cost” will be released this year. Sean Schantzen was previously a securities attorney involved in representing boards, directors, officers, and companies in securities litigation and other matters. The two are co-founders of the Health Rosetta Institute.

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