Jeff J. Wurzburg, Senior Counsel, Norton Rose Fulbright, Mackenzie S. Wallace, Partner, Thompson Coburn, and Elise D. Brennan, Partner, Conner & Winters LLP, discuss the lifecycle of payer/provider disputes and some of the current trends in this area. They cover considerations related to outstanding accounts receivable, the benefits of arbitration, drafting arbitration clauses, initiating a dispute, sampling, motions practice, when mediation makes sense, and considerations related to artificial intelligence. Jeff, Mackenzie, and Elise spoke about this topic at AHLA’s 2024 Advising Providers: Legal Strategies for AMCs, Physicians, and Hospitals, in New Orleans, LA.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Jeff J. Wurzburg, Senior Counsel, Norton Rose Fulbright, Mackenzie S. Wallace, Partner, Thompson Coburn, and Elise D. Brennan, Partner, Conner & Winters LLP, discuss the lifecycle of payer/provider disputes and some of the current trends in this area. They cover considerations related to outstanding accounts receivable, the benefits of arbitration, drafting arbitration clauses, initiating a dispute, sampling, motions practice, when mediation makes sense, and considerations related to artificial intelligence. Jeff, Mackenzie, and Elise spoke about this topic at AHLA’s 2024 Advising Providers: Legal Strategies for AMCs, Physicians, and Hospitals, in New Orleans, LA.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
<silence>
Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit american health law.org.
Speaker 3:Welcome to this A HLA podcast. I'm Jeff Warberg with Norton Rose Fulbright in our San Antonio office, part of our healthcare team. Uh, and I'm here today with Mackenzie Wallace and Elise Brennan. And this is based on a presentation that we gave at this year's Advising Providers conference , uh, which was held in New Orleans, February se fifth through seventh. Uh, we're gonna talk about current trends in payer provider disputes, and we're gonna start kind of at the beginning of a dispute and hopefully get all the way to , uh, the conclusion and, and then talk about a couple of hot topics as well. So, with that, I wanna welcome , uh, Mackenzie Wallace and, and Elise, Brendan , thank you , uh, for doing this and for our presentation back in February. I don't know if you wanna take a moment and introduce yourselves, Mackenzie.
Speaker 4:Thank you, Jeff. And I'm glad to be here. Name's Mackenzie and I am a partner in the Dallas office of Thompson Coburn. I am, by way of background, a commercial litigator, but over the last decade, my focus has become heavily healthcare with about 90% of my practice being composed of healthcare litigation with a real specific niche in the payer provider managed care reimbursement space. Um, specifically representing most often providers and health systems in disputes against payers.
Speaker 5:Hi, this is Elise Brennan and I am a partner in the Tulsa Office of Current Winners. I have been practicing , uh, uh, healthcare law for probably somewhere over 30 years. I originally started my practice as a , uh, commercial lit litigator and migrated into healthcare law. And I am here on this call as representative of , uh, the, from the arbitrator's perspective. I am A-A-H-L-A arbitrator and have been for maybe over 25 years. I also have been , uh, for that length of time, AAA arbitrator, and I'm on the complex commercial panel for aaa , the employment panel and the payer provider panel, which is a specific panel that the AAA has that the A HLA doesn't have. So I'm happy to be here.
Speaker 3:Well, thank you both. And , uh, again, this is Jeff Warberg with Norton Rose Fulbright. My practice focuses on healthcare primarily , uh, reimbursement and regulatory matters, including managed care and managed care disputes. And we also tend to represent the provider side. So , uh, I hope that won't cause anyone to turn it off if you tend to be on the payer side, 'cause you're gonna get excellent, excellent insights here , uh, from arbitrator Brennan. So with that, we'll jump right into it. Mackenzie, what are some considerations for providers when they're thinking about their outstanding , uh, accounts receivable? You know, talk about the way you look at this and where outside counsel can be be helpful.
Speaker 4:Absolutely. So I would, I would put the types of clients that we see into two buckets, really, that we have instances where we have clients who are regularly pursuing outstanding AR that is unpaid or underpaid by payers and are well-oiled machines as far as those disputes and hiring outside counsel. And then we have other clients who really aren't even aware of the possibility of the massive AR and how to resolve that. And so depending on kind of which bucket the health system or provider falls into, we proceed accordingly. Where they're a well-oiled machine, they often know the claim sets and know exactly what data they need to provide to us in order for us to pursue potential litigation. If , if it's advantageous, however, in instances in second bucket where the, the client is not as aware of the, the opportunity that we have to look at that, some of it is kind of teaching them in their business office exactly how to pull the data, analyzing the outstanding AR to determine really viability of a dispute. And Jeff, you know this as well as I do, which is we don't wanna pursue a dispute that isn't going to be , uh, a favorable end value proposition for the client. We are not going to seek something and pursue something that outweighs where the cost would outweigh its benefits. But so often what we see is that there is a massive amount of AR with truly applicable instances of either , um, wrongfully applied contractual terms or wrongfully applied policies. And that we can pursue that ar either in a predis dispute situation or truly in an arbitration or some type of other litigation. Uh, and that would be a , a value add. It's one of the few times that we as litigators are not a cost center, but instead we really do add value and and profit to the bottom line of the company. So looking at the claim set, crunching the data and looking and seeing what patterns we're seeing emerge and where there might be possibility of either pre-suit resolution or a real suit that is necessary.
Speaker 3:Yeah, so often money is left on the table and it's worth exploring that at the outset. And, and sometimes even a simple demand letter can get your foot in the door, get some recovery , uh, and there's a time value of money. So , uh, the sooner the better. Um, arbitrator Brennan , why is arbitration the right fit for these types of, of disputes?
Speaker 5:Well, there's several reasons. Uh, first of all, it is a confidential process. There's no claim filed in a court that a court reporter can pick up. And , uh, although I'd like, I always like to talk about the confidentiality of our arbitration 'cause there's some times of misconception. I, as an arbitrator am obligated my , by my code of ethics to keep everything in an arbitration that I learn about as confidential. So I am bound to confidentiality. But the parties themselves are not bound to confidentiality regarding an arbitration unless their contract that is the basis for the arbitration has a confidentiality provision in it, that the arbitration itself and everything that happens in it will be considered confidential. Or there is a confidentiality agreement entered into by the parties, either through the scheduling order or through a separate , uh, uh, sort of , uh, protective order or confidentiality order that where everybody agrees to keep everything confidential. That's the first reason, the confidentiality. The second reason I think arbitration is particularly valuable in this , uh, in payer provider disputes is that the parties frequently are disputing with one another while they are still maybe negotiating another contract or they're doing business together , uh, on an ongoing basis. So arbitration presents an opportunity to , uh, try and, you know, tone down the dissension and make it a little more of a , uh, a resolution process and not such a dispute process because the people have to continue to do business with one another. And and the third reason I think these disputes are particularly , uh, suitable for arbitration is the complexity of the disputes. These are very , um, uh, payer, I mean, paper heavy , paper heavy in terms of claims. They have a lot of , uh, healthcare jargon associated with them that if you can get an arbitrator who understands the reimbursement process, understands terminology, and you , you , you , you're not educating somebody from ground zero, you're able to really get into the weeds. And they're , and given the fact that these are such complicated disputes to put on the opportunity for the council to come up with creative ways to , uh, minimize , uh, the, the , the , the process in , in ways that is effective or have evidence presented in effective ways, it's, it's a good thing for counsel to be involved and be creative in how they present the case. And that's something you can do in an arbitration procedure that you cannot do as well in court.
Speaker 4:Arbitrator Brennan, I love what you just explained because in two recent arbitrations, we've had really , uh, creative arbitrators who have prompted really elaborative approaches to ultimate resolution of the dispute that didn't end in a complete final award. That there were interim steps in some instances that saved the party's costs , that added efficiency, and that, like you said, really kind of removed some of the automatic dissension that is present in typical litigation and allowed parties who are often on either sides of the table with each other to create a more creative way of solving the problem that they had . So I, I appreciate that so much, and , uh, I agree with that insight,
Speaker 3:And we talked about this in, in February a little bit, but you see a lot of the same counsel in these cases. And, and that can be enormously helpful because when you have relationships , uh, especially across the way, right , um, in our instance with, with payer attorneys , um, that really helps to smooth things out, create , uh, opportunities that might not otherwise be, be available, especially , uh, during the arbitration process. Mackenzie , uh, we're often told when we're younger that the, the best defense is a good, I'm sorry, the best offense is a good defense, but sometimes the best offense is, is just a good offense. And so talk about the importance of crafting sophisticated arbitration clauses , uh, and other aspects that you consider , uh, before the ink is dry.
Speaker 4:Absolutely. There's, there's an interesting consulting component now I know my practice and of yours, Jeffs wherein I weigh in not only on what's going on once the fight has begun and advising clients on that, but often provide advice in the writing of the actual , uh, terms that ultimately we litigate over and over. And really we kind of see each sides of the fence on the payer side and the provider side responding to how we litigate these, that we see the language change over time in response to the things that we're briefing and seeing over and over. And so absolutely as it as it relates to the dispute resolution procedures and its terms, those are an important place to start. And really, we, we wanna look at kind of a number of things. Uh, what are the required the parties required to do regarding pre-suit , uh, or pre arbitration procedures regarding notice mediation appeals? Are the parties required to mediate formally prior to arbitration? What is the waiting period? What is the administrative appeals process and how does that relate to the language? We brief over and over the issue of administrative or, or grievance and appeals exhaustion? And we've seen kind of a movement of that becoming both sort of an earlier motion that may be filed on arbitrability, that questions whether or not the case is actually right for arbitration from the payer perspective based on whether or not those policies and procedures were followed. And now we're seeing it often kind of later in the game too, not in the traditionally I would say we saw it as dispositive motion practice and kind of the middle part of the dispute, and now we're seeing it often at the beginning and then at the end, not that we don't see them in the middle still, but kind of at every phase this issue is being brought up. And so looking at and cleaning up your appeals, your processes and your procedures, but not just those, the terms around that in your agreement to make sure that they match what you can accomplish and that they match the policies. Because often we see kind of conflicting , uh, policies and procedures to the ultimate terms of the agreement.
Speaker 3:So Mackenzie, now we've, we've got our client to the point where they say, we're , we're ready, let's move forward. Talk about those initial steps when you are initiating a dispute.
Speaker 4:Absolutely. Uh, we first start by looking at the agreement, looking at a kind of number of pertinent terms and the agreement and analyzing where we stand. Then of course, we crunch the data, we look at the data, and always we start as Jeff identified with a simple letter, because so often , uh, the payer hires counsel who we we're against over and over. And that presents an opportunity for us to collaborate and be creative about potentially resolving the dispute before we ever ultimately have to file an arbitration. Sometimes that's unavoidable, and then we're looking at what, what are we required to do before we can get that on file? Um, but there are kind of different stages throughout the dispute where there is collaborative approach to trying to resolve it without a full and final hearing. But sometimes, like we said, it's unavoidable. So , um, starting with the demand letter, looking at the agreements terms and, and looking at how that relates to the data.
Speaker 3:Arbitrator Brennan, from, from your perspective, anything that you like to see early on in the process?
Speaker 5:Well , uh, first of all , um, at the scheduling order, and particularly at the scheduling hearing, particularly if you're under the , uh, American Health Orders Association , uh, rules there , there's a specific rule that the, the scheduling hearing or the status conference rule 5.4, that in reimbursement scheduling in in reimbursement disputes, the parties shall use the reimbursement scheduling conference checklist that the A HLA rules provide as part of the process prior to the conference date. But the idea that the parties come together very early on and try and identify claims in a way that they can get the dispute resolution process off and running is something I like to see, because you really can't have much of a process until the claims are identified that are the subject of dispute. And I would say even better, the claims are bucketed, and I understand that it's a difficult, it's not as easy set as done because the way claims are identified in the provider system is very different frequently than the ways claims are identified in the payer system. So one thing I like to see at the beginning is some work by the council to try and come to resolution of that issue so everybody can know what is this dispute about? So that's one thing I like to see at the very beginning. I also like to see a, if , if sampling is to be used, and I know we're gonna talk about sampling in a little bit, but if sampling is to be used and council are agreeing on that, that the process for sampling how that's gonna work, how extrapolation is gonna work, if there's going to be an expert , uh, involved to pull the sample, or if the parties are gonna do that by some random method , uh, if there is going to be , um, uh, an expert to do the extrapolation or if the arbitrators are expected to do that, I'd like to see those issues identified and discussed about early on in the process by counsel , because once again, I don't think the dispute can move very quickly until the claims are identified and then the sample is, is determined or how, if there's going to be sampling and how it's gonna work.
Speaker 3:Mackenzie, talk about sampling. When do you like it? When do you not like it? Do you like a lot of buckets? Do you like smaller amounts of buckets? Give us your thoughts on that.
Speaker 4:So I I very much support sampling. I think it allows the parties to more efficiently approach both the discovery process and the final hearing. Especially having tried two disputes just in the last six months, it would've been impossible for the parties to reach those quick resolutions if they had not sampled. So I think it's advantageous to both sides as far as selecting the sample , uh, I think, again, the relationships that exist between outside counsel on the payer and provider sides allows for interesting collaboration there. That it began in, I would say like the 2012 to 20 kind of 17 timeframe is something that we often had to move for on the provider side, that there was often a dispute of whether or not we would sample. And now there has been more of a shift to always in agreement as to sampling and a question of how we approach the sample. And it's really kind of connecting our statistical experts who are working to select the sample and having them put their minds together. Sometimes you have experts who have really strong opinions about the population of claims and what's present in that population and what requires different stratification throughout that sample set to ensure that it's accurate. And other times you have experts who have also worked with each other on opposite sides who know exactly how they approach it. And it's really just a process of getting that written down and stipulated to, and sent to the arbitrator such that the parties can kind of be off to the races. And so we've, we've gone so far as briefed it and thought about it extensively in arbitrations and in court, and then we've had other instances where the parties are agreed to from the gate, and that even the process is just essentially seamless.
Speaker 3:Yeah, it's always nice when the parties can agree to that and especially when the experts, whether they know each other or even if not, if they're willing to get together and talk through it , uh, oftentimes agreements can be reached that, that makes sense and streamline the process for, for everybody.
Speaker 5:I , I'd just like to add, I , I have haven't arbitration where , um, there seemed to be no agreement, no movement on the sampling. And so I ordered that we have a conference call with the parties and with the two experts, both parties had obtained their experts and , and this was on the distant methodology of how to sample. And so we had a , uh, a call and when the two experts got on the phone and discussed their perspective, they, they were not , uh, out of agreement with one another. They both had the same , uh, idea of how to proceed. So , um, you know, sometimes I think perhaps the party is intervening, well , not the party, but the council is intervening between the experts and the other side to prevent , uh, that easy resolution of the sampling process. So I think getting the experts together to talk when there isn't , uh, it doesn't appear that there's a parent agreement is a really good idea.
Speaker 3:Her Trader Brennan, when thinking about motions practice, from your perspective, what are some things that you like to see , uh, in motions practice and, and the process , process of motions practice?
Speaker 5:So , you know, the rules require that there be a , a a request to file some sort of motion. And I don't believe that needs to be a formal, I don't wanna have a motion to get a , whether we're gonna get a motion, it can just be an oral request as I'd like to file this motion because I think it will , uh, make things , uh, more efficient and will help with the , uh, resolution of the, of the case in an expedient manner. And, and , and those are the two issues I look to is, is there some is , you know, if if there's a preliminary legal issue that needs to be resolved, that makes a lot of sense to me for, from a motion practice. But when I'm getting motions that are , um, uh, have a lot of factual need to have a lot of factual , uh, information to support the motion that , that, that from an arbitrator's perspective, you're , it's , it's frequently unlikely that you're going to get those things granted because an arbitrator is very aware of the basis for vacating her award. We think about that under the Federal Arbitration Act and what are the basis for the award to be arbitrated, because none of us want the award, I mean, the award to be vacated. None of us want that to happen. So one thing is, you know, if the party isn't given the opportunity to really put their case on, that's the grounds for vacating the award. And that's one reason arbitrators are, are maybe less , um, more reluctant than courts to grant a motion when there's a lot of factual issues involved, factual disputes. But if there's legal issues involved , uh, I think that's a very appropriate way to proceed, to streamline the arbitration, to try to get an early decision on some of the legal issues.
Speaker 3:Mackenzie, when does mediation make sense? Does it make sense be before the arbitration has started? Have you ever used mediation before you actually get to arbitration, but while motions practice is ongoing?
Speaker 4:Yes, and I think it's very fact dependent and party and counsel dependent. I recently settled a dispute via no, with no mediation , uh, prior to ever even being drafted, right. It was just a demand letter that really prompted a conversation between an outside counsel who I'm opposite from often. And that resulted in, in helpful conversations between business folks with on each side and an early resolution that was advantageous to both parties. Oftentimes , the parties come to the dispute with kind of their heels dug in as to where they believe they're right and where they believe the other side is wrong. And then I think a little bit of discovery has to occur in order for each side to kind of understand the pros and cons of proceeding forward toward , uh, a hearing, an arbitration hearing or a trial. And so then I would say mediation formally is helpful to have an outside mediator pressure. Some of those risk points both from the, the outside counsel perspective, with my own client and knowing that they're going, the mediator is going to do the same thing on the other side in the room. And so I would say formal mediation, pre-suit is often prompted by the strict terms of the agreement and may be required before we can proceed in arbitration. But often if you're gonna settle it, it can be done informally , uh, prior to any suit being filed midway through, I think a formal mediation. It depends if both parties, again, are working really well together. Negotiation can occur outside of a formal mediation at any point in the game. And then oftentimes if you're not resolved and you're approaching a pre , uh, pre-hearing, you know, scheduled meeting with the arbitrator, that might be when the arbitrator orders or requests a mediation formally between the parties. And that can also be advantageous kind of on the eve of the actual hearing. And then we've also done it after hearings before the award comes out. So there really are so many points in time where it occurs and where it results in, in a positive , uh, meeting of the minds, if you will, where both parties compromise. Maybe neither party gets their best day , but in a much better situation than if they, you know, incurred significant costs and proceed all the way through a hearing.
Speaker 3:Arbitrator Brendan , I I'd love to get your thought on that as well, where you've seen it deployed effectively. Uh, and then additionally, any other thoughts that you have from the arbitrator's seat regarding these payer provider disputes?
Speaker 5:No , um, I , I was interested to hear from Mackenzie that arbitrators have ordered mediation. Uh , that hasn't been my experience because , uh, we, there's always been sort of a , um, uh, a hesitancy to do that because is that, is that our responsibility as an arbitrator? But , um, I think that that's interesting and, and I , I wanna explore that with some other arbitrators to see, see how that happens. But, and , and so frequently, from my perspective, we're not really involved in when or if mediation occurs. The parties , the parties and the council in these matters are usually very sophisticated and they know the complexity of trying to put on 3000 claims even when they're sampling present . So they're usually very , uh, very actively working towards some settlement with the other side . And we know that's going back on background , know that that's media process going back on settlement. Um , that that's a good thing. We know that arbitrators like to encourage that, but I've never been in a situation of actually ordering a mediation. Um, I think the , the other thing that arbitrators know that do a lot of these payer provider disputes is that the council , as was mentioned earlier, by, by , by you all are frequently know each other and are are , are on other sides of arbitrations all the time. And so they have a methodology of doing things and arbitrators, and I don't wanna interfere with the council's process because arbitration is a creature of contract and it is a, a party driven process. I get that. But there's always a tension between the process the parties and the council want to pursue and the timeliness of the arbitration process because one thing we are taught as arbitrators, and it's emphasized to us all the time, is that arbitration is supposed to be a quicker, more efficient process than litigation. And so we also are, are sensitive to the arbitration brand and how clients that participate in arbitration perceive arbitration itself. And when things are, are delaying and not moving in a in efficient or even economical way, that's something arbitrators tend to think about and be concerned. And so, so something I've done in situations is when the parties keep asking for extensions and continuances, and they're , they're all in agreement about this, which I'm not, not one to, to , uh, stop that if the , if both council are in agreement on these things, but in order to assure that this is a party driven process, that it's not just the council that's not getting around with something or that the parties are on board with these extensions. I, I like to, I ask from and have done this, that the parties themselves represent, you know, written format that they are in agreement with this extension and, you know, aware that this is going on again, because I don't want to have some , uh, corporation out there upset about the slowness of the process when the arbitrators aren't wanting it to be slow. It's just something that's going on by counsel that the parties themselves aren't even aware of.
Speaker 3:All , all very interesting points. Arbitrator b Brendan , uh, you know, we're gonna close out today talking about a couple of hot topics that we're, we're seeing in this space. Mackenzie, what are, what are some things you've been seeing lately?
Speaker 4:Well, as I previewed a little bit earlier, we're seeing kind of a change in when the question of failure to exhaust administrative remedies is raised that we are seeing that more often raised early as a more jurisdictional, jurisdictional or arbitrability type motion, and we're seeing some reduced dispositive motions. The other thing that we are seeing present both in the data and then in the discovery, and then moreover in the hearings that we tried through full and final arbitration this year, is an increase in DRG downgrades with a clinical component woven in. At the beginning of our, our focus in this type of work, oftentimes you would see what was sort of a clear medical necessity denial or, or clinical issue in sort of bucketed denials. And then you'd see coding and coding would really be strictly based on either the outpatient coding or the DRG assigned. And there would be a dispute related there too . Now we're seeing kind of a hybrid claim where throughout the US really across different regions, hospitals and across different payers, payers are downgrading DRGs not based simply on the principal diagnosis , uh, code being incorrect, but a questioning of the underlying clinical presentation, whether or not it supports that underlying diagnosis , um, from the payer's perspective, that requires in their view a clinician to weigh in, but it also in many instances requires a coder to weigh in. And so that complicates a bucket of underpayments and denials that are present across the, the claims set and the data that we see across the discovery that we see and across our presentation of the case strategically at a hearing, because it just requires more experts to weigh in on whether or not that was a proper underpayment or denial. And so that increase in change or shift in the DRG downgrades is something we're seeing heavily.
Speaker 3:Yeah, that that's something , uh, we're certainly seeing as well. Um, payers being a little more aggressive and trying to use their policies even when contracts are very clear that policies , uh, do not circumvent the terms of the, the agreement itself. Uh, Mackenzie, I don't want to steal your thunder, but in conversation, you've made a very interesting point to me , uh, regarding artificial intelligence and the role that that's gonna play in . Obviously we're seeing a , a number of , uh, lawsuits regarding AI and pre-auth and , and I certainly wonder whether pre-auth is gonna become the new surprise billing, although there's obviously some , some overlap there . Uh , but Mackenzie, you wanna talk about that ?
Speaker 4:Of course , we have talked about that , Jeff , both on our panel . And then outside of that , that what we are seeing, well, A, is the OIG G has become really interested and focused on kind of managed care and how it's being operated by TPAs across the US and specifically in that off space . Then simultaneously what we're seeing is class actions by most often members , uh, uh, disputing whether or not the use of AI and the denial of claims at the authorization stage is appropriate and, and , uh, a , a good way to proceed. And so we're certainly weaving that in to the discovery that we're pursuing and the managed care disputes that we're seeing because it's relevant to whether or not that is something that is permitted under the agreements and the policies that currently exist. I would say kind of like we talked about, Jeff, like you aptly pointed out that the best , uh, offense is , is defense. Look at your agreements, providers and health systems and payers for that matter, and determine whether or not those policies and procedures and agreements and benefit plans kind of across the board are adequately addressing this AI issue. And if they are not, or if they are silent, that is going to be something we are going to see litigated in federal court , um, on the kind of ERISA side as it relates to members and the plans and those class actions that have been filed. But we're also gonna see it play out in these arbitrations and how it impacts ultimately the , uh, dispute resolution between payers and providers.
Speaker 3:Absolutely. And I , and I'll just note for listeners, when you get to the end of all of the A HLA podcasts and, and you're in need of another podcast , uh, there's an podcast called An Arm and A Leg. The episode is called Son of Medicare Attack of the Machines, and they're interviewing Bob Herman from stat, who's really been at the front end of on reporting about , uh, pre-auth and, and ai, and it puts a real human face , uh, on it as well on that, that podcast. So I highly recommend it , um, as appropriate. Arbitrator Brennan, I want to give the last word to you , uh, with regard to anything you're seeing or any final points , uh, that we've missed and and you think need to be said.
Speaker 5:Thank you. Um , I , I was glad McKenzie way raised the issue of , uh, payers disputing whether or not the , uh, administrative remedies have been exhausted and doing that early on , uh, or doing that , uh, as a jurisdictional issue. Because the one thing I also , uh, would like to say on that from the arbitrator's perspective, if, if , uh, I've seen that also and the question whether a matter is ripe or arbitration, you know, is a jurisdictional issue, and , uh, any comment that I made regarding not seeing early motions on factual disputes doesn't apply to that. And from my perspective to that type of argument, if the parties are, if the payer is asserting that the administrative procedures were not followed, which, which could involve a lot of facts, and therefore this matter shouldn't be in arbitration, that's the type of issue I like to see briefed and argued early on and not wait to get to the end , uh, of the, of the hearing. Sometimes they present it as a defense to the claim as opposed to a jurisdictional issue. But if it's a jurisdictional issue, whether this matter is arbitrable or not, that's something that , uh, uh, arbitrators believe needs to be considered first and, and quickly. Uh, the other comment I wanted to make has to do with its way counsel are proposing resolution of clinical disputes like medical necessity. I'm seeing more and more council wanting to use an independent review organization to make those , uh, assessments as part of the arbitration process, which then get reflected in an arbitration award. And the , uh, the issue I have with that, I'm not opposed to that, but again, arbitration is a creature of contract and has the contract allowed for that procedure, or is it just something that council have come up with? And I, I've been in a situation of structuring , um, basically amendments agreed to amendments to the arbitration procedure itself so that the independent review organization is something that is authorized and signed off on by the parties and not just something that the council do out of my concern that if it's doesn't , uh, uh, if it's, if that doesn't happen, there be a basis for claiming that in accepting an independent review organization's report, the arbitrator acted outside the scope of her authority. So , uh, there are real creative ways to try and resolve these disputes that are more and more , uh, being , uh, promulgated and , and proffered. It's just all of them require that we go back to the fundamental basis that arbitration is a creature of contract and it's what the parties agreed to. And if we're going to change that agreement, do the parties themselves agree? So that , that would be my, my last word on this.
Speaker 3:Well, thank you arbitrator Elise , Brennan Mackenzie Wallace , uh, it's always a pleasure to speak with you both, and thank you for sharing your expertise . And to the listeners , thank you for listening to A HLA podcast.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law org .