Title: Keslar v. Emerus/BHS SA Thousand Oaks, LLC, Cause No. 2020-CI-18623
Court: Texas State Court, Bexar County, Texas, 73rd Judicial District
Class: Plaintiff brings this action on behalf of himself and all persons who visited a Baptist Emergency Hospital and had a “BMP” and/or “LFT” lab test panel (as defined in the Petition) ordered and performed, and were then billed for the individual component tests making up the panel separately.
Class Period: September 1, 2018 to Present
Wolf Popper LLP is counsel for Plaintiff and the Class he seeks to represent in a class action against Emerus Holdings, Inc. and related entities including Baptist Emergency Hospital – Shavano Park (“BEHSP”).
In December 2018, Plaintiff visited the emergency department at BEHSP. BEHSP was a participating provider in Plaintiff’s health benefit plan’s provider network. Plaintiff made sure to go to an in-network emergency department in order to contain costs. Nine months later, Plaintiff received his first billing statement from BEHSP. He was shocked to discover that the charges for “LABORATORY” totaled more than $4,500.00. The bill did not break down the charges associated with the lab work.
After repeated inquiries, Plaintiff discovered that the clinician who treated Plaintiff had ordered common lab test panels, which are groups of tests ordered together. However, Plaintiff learned that the panels were not billed as such; instead, the component tests were individually billed (i.e., separating the common panels into their smaller component tests). That practice of “unbundling” a panel of tests and billing each individual test separately significantly increases the cost to the patient. “Unbundling” occurs when multiple procedure codes are billed for a group of procedures that are normally covered by a single comprehensive code. The Office of the Attorney General for Texas has identified “‘unbundling,’ or billing each stage of a procedure as if it were a separate procedure” as a type of health care fraud.
Unbundling is a particular concern in lab billing. Blood work is frequently done in preset “panels,” where several related tests are requested with a single testing order and completed with a single patient specimen. Commonly ordered panels of lab tests have Current Procedural Terminology (“CPT”) codes both for the panel as a whole (i.e., a single code for the group of tests) and for the individual tests within the panel. Testing panels are typically less costly to complete than if each test were ordered and performed individually, and thus reimbursement for a panel is typically lower than what the total reimbursement would have been if each test within the panel was billed individually. Unbundling happens when a laboratory bills separately for some or all tests analyzed as part of a panel, rather than billing for the panel. Tests may be intentionally unbundled in an effort to maximize reimbursement.
A variation on unbundling happens when a facility performs some but not all of the tests in a panel in order to circumvent the panel and justify billing for the individual tests, which results in higher reimbursement than if the full panel was performed. This “twist” on unbundling is what happened in this case according to the allegations in Plaintiff’s Petition.
Plaintiff has claimed that Defendants’ actions violate the Texas Deceptive Trade Practices Act, constitute fraud by non-disclosure, were unconscionable and led to Defendants’ unjust enrichment. Through the class action, Plaintiff seeks monetary damages for the Class, injunctive and declaratory relief, and Defendants’ disgorgement of any unlawful profits, among other things.
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