Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

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

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.

Surprise! A Cautionary Tale for Out-Of-Network Billing: The No Surprises Act and the Impact on Healthcare Providers

SURPRISE! Congress passed The No Surprises Act at the end of 2020. Providers, particularly those billing as out-of-network providers, should start thinking about strategies to comply with this new law, set to take effect on January 1, 2022. In its most basic sense, the new law prohibits providers from billing patients for more than the in-network cost-sharing amount in most situations where surprise bills happen. It specifically applies to non-government payers and the amounts will be set through a process described in the new law. In particular, the established in-network cost-sharing amount must be billed for the following services:

Ohio Enacts Substantial Changes to Employment Discrimination Laws

In January, Governor Mike DeWine signed into law the Employment Law Uniformity Act, amending the employment protections in the Ohio Civil Rights Act in several significant ways. Such changes to the state’s anti-discrimination and anti-harassment laws have been considered and debated for years and finally made their way into Ohio law. What has changed for employment claims under the amended Ohio Civil Rights Act?

OHIO ADOPTS THE SERIES LLC: Implementation of Ohio’s Revised Limited Liability Company Act is Coming

On January 7, 2021, Ohio adopted S.B. 276. The new legislation establishes the Ohio Revised Limited Liability Company Act (“ORLLCA”) which effectively replaces the current Ohio LLC Act. ORLLCA will be fully effective as of January 2022. While the new law contains numerous changes to the existing LLC landscape, below is an overview of some of the key differences under the ORLLCA.

Will Federal Legislation Open Cannabis Acquisition Floodgate?

Are potential buyers quietly lobbying at federal and state levels to kick open the door to launch a new round of strategic acquisitions? Will presently pending federal legislation, the SAFE and MORE Acts, providing safe harbor for banks and re- or de-scheduling marijuana, be sufficient to mobilize into action major non-cannabis companies that previously shunned the cannabis industry due to the unknown implications of owning businesses whose activities are illegal under federal law?

The Future of the Families First Coronavirus Response Act

Over the last year we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.