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Ohio Hospitals and Healthcare Clinics: It’s Time to Revisit Your Billing and Collection Practices

Client Alert
February 1, 2021

According to a recent Cuyahoga County case, certain healthcare entities may not be protected from liability when engaging in unfair or deceptive billing acts. This decision is consistent with the growing trend across the country to encourage price transparency and eliminate unfair surprise billing practices by health care organizations.[1] Now is the time for hospitals and other health care organizations to revisit their billing and collection policies and procedures to confirm that they are legally defensible and consistent with best practices.

New Developments

On January 14, 2021, the trial court in Cuyahoga County ruled in Brakle v. Cleveland Clinic Foundation that Ohio’s Consumer Sales Practices Act (“CSPA”) does not exclude transactions between patients and hospitals or healthcare clinics. These healthcare entities are not “physicians” as such term is defined in the CSPA and are therefore not shielded from liability stemming from consumer transactions.

Ohio’s Consumer Sales Practices Act

The CSPA prohibits unfair or deceptive acts or practices in connection with a consumer transaction.[2] Examples of unfair or deceptive acts/practices under Ohio law include but are not limited to: (1) failing to notify a customer that the customer has a right to an estimate for any service that will cost over $25; (2) failing to provide an estimate upon request; and (3) failing to give the customer a receipt after accepting a deposit.[3] As defined, a consumer transaction means, in part, a service to an individual for purposes that are primarily personal, family, or household.[4] The law expressly carves out transactions between physicians and their patients.[5] Therefore, transactions between physicians and their patients are not subject to the rules and regulations surrounding unfair or deceptive acts or practices.

Brakle v. Cleveland Clinic Foundation

Pursuant to an order from her physician, Amanda van Brakle (“Plaintiff”) visited a Cleveland Clinic (“Defendant”) facility in 2018 for radiology services. No physician participated in administering the services. At no time prior to the services did Defendant inform Plaintiff that she was entitled to an estimate of the cost of the services nor was she given any estimate of the cost. At the appointment, Plaintiff made a small payment toward the total cost of the service and was not given a receipt for such payment. Over time, Plaintiff made additional payments toward the bill and Defendant failed to render receipts. Defendant also credited these payments to a balance owed for different services and not the radiology services. Defendant eventually sent Plaintiff’s debt to collection. Plaintiff brought suit against Defendant for violations of the CSPA for failing to notify her of her rights to a pre-service estimate, failing to provide such an estimate, and failing to provide receipts.

Defendant filed motion for summary judgment (i.e., asking the court to dismiss the case) on several grounds, but the overarching justification being the service provided to Plaintiff is not a “consumer transaction” covered by the CSPA since the law excludes transactions between physicians and their patients. The Court ultimately disagreed with Defendant and denied the motion for summary judgment. The Court found that “physician” means a person skilled in the art of healing or a practitioner of medicine; a person duly authorized or licensed to treat diseases; and one lawfully engaged in the practice of medicine.[6] Simply put, Defendant is not a human being. The Court stated it is a corporate entity clearly outside of the definition of “physician” as commonly understood.[7] As such, the transaction at issue is not protected by the CSPA, the motion for summary judgment was dismissed, and the case will proceed.

Please contact attorneys Kate Hickner at kehickner@bmdllc.com or Kevin Cripe at kmcripe@bmdllc.com should you have any additional questions about Brakle v. Cleveland Clinic Foundation, surprise billing, or other general healthcare issues.

[1] See American Medical Association High-Level Summary of the No Surprises Act (2020) https://osma.org/aws/OSMA/asset_manager/get_file/527681?ver=0

[2] Ohio Rev. Code § 1345.02(A).

[3] Ohio Admin. Code § 109:4-3-05, 07.

[4] Ohio Rev. Code § 1345.01(A).

[5] Id.

[6] Citing Chiropractic Clinic of Solon v. Kutsko, 92 Ohio App.3d 608, 611 (8th Dist. 1994).

[7] Brakle v. Cleveland Clinic Foundation, Journal Entry (Jan. 14, 2021), pg. 5., https://www.accountsrecovery.net/wp-content/uploads/2021/01/van-Brakle-v-Cleveland-Clinic.pdf.

Kate HicknerKevin CripeHealth LawBMD Healthcare & Hospital Lawpatient billing
Client Alert

Your Workplace Under Biden

November 9, 2020This is my favorite recurring post – Predictions of How a New Administration Will Affect Your Workplace. Four years ago, we accurately called the emasculation of the 2016 proposed FLSA Overtime Rules (the salary exemption threshold was set at $35,568 in 2019, rather than $47,476 as proposed), we forecasted a conservative shift of the NLRB and its results (a roll-back of employee rights, social media policy evaluations, and joint employer rules), and we nailed the likelihood of multiple conservative appointments to the United States Supreme Court and its long-term effects (although I completely failed to predict that my ND classmate Amy Coney Barrett would fill the final vacancy during the Trump administration). This time, the L+E Practice of BMD has decided to make it a group effort at predicting what will happen, what probably happen, and what might happen under President Biden. As always, please save this in your important files and pull it out four (or eight) years from now to judge our accuracy.Client Alert

HHS Provider Relief Funds Reporting Requirements: Important Updates Every Provider Should Know

November 4, 2020HHS continues to revise its reporting requirements for the use of the Provider Relief Funds. Providers with more than $10,000 in Provider Relief Fund payments must report on the use of the funds through December 31, 2020. The reporting window will begin on January 15, 2021 and providers must complete reporting obligations for FY 2020 by February 15, 2021 through a portal designed by HHS. However, providers that have unexpended funds as of December 31, 2020, will have an additional 6 months to use the remaining funds through June 30, 2021. These providers must submit a second and final report no later than July 31, 2021.Client Alert

Should I Apply for Phase 3 Funds? Important Considerations Every Provider Should Know

November 2, 2020On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers through a Phase 3 distribution. Importantly, providers that previously received HHS Provider Relief Funds or already received payments of approximately 2% of annual revenue from patient care are eligible to apply. Eligible providers have until November 6, 2020 to apply for these Phase 3 Funds. However, the question from providers continues to be: Should I Apply for Phase 3 Funds?Client Alert

CISA Ransomware Practices

October 29, 2020On October 28, 2020, the United States Cybersecurity and Infrastructure Security Agency (CISA) issued an alert warning of imminent threats to US hospitals and healthcare providers. The specific threat involves RYUK Ransomware attacks. RYUK is a novel ransomware that goes undetected by commercial anti-virus/malware detection programs. Once deployed, RYUK encrypts all data and disables systems. In short, it cripples all functionality down to phone systems and automated doors. Healthcare providers should alert their employees to remain hyper-vigilant and report any suspicious activity seen in email or on networks. It has been reported healthcare providers in New York, Pennsylvania and Oregon have been targeted in the last 48 hours. If your organization encounters issues, BMD can assist in mobilizing a response team and has contacts with forensic IT firms that are familiar with RYUK. It is advisable to engage professionals with experience dealing with this specific threat.Client Alert

HHS Announces an Additional $20 Billion In Provider Relief Grants

October 5, 2020The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.
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