Legal Basis for Claiming Ownership of Billing Data?

[RichardP]

Over the years, we have lost clients and gained clients.  Whether losing or gaining clients, there is always a transfer of data involved - from the old biller to the new biller.  We have recently lost a couple of clients to a concierge medicine company.  That freed us up to take on a couple of clients who have been wanting us to take them on for a while.  So I have been importing data for the incoming clients and exporting data for the departing clients.

Which raised the following question in my mind:  is there a legal requirement for the minimum data the old billing company must pass to the new billing company?  And, if so, where would such a legal requirement be found in a particular state?  I know the standard response can be "check with your local Healthcare Attorney".  I'm just wondering if anybody here has had any experience with the legal requirments for the minimum requirement for data transfer.

[edit:  Just to be clear, I'm talking about when the billing company is using their own billing software on their own servers.  Obviously, if the billing company is dialing into the doctor's own server, this question is moot.]

We usually pass the patient demographics and insurance and work the old balances for four or five months and then pass a total balance owed for each patient to the new billing company.  That is what we usually receive from a new client coming to us also - but sometimes we get nothing and the old billing company refuses to give us anything - including patient demographics.  So we build our database from scratch as the patients are seen by the doctor.  I've often wondered if that refusal to provide data is legal, and now I've remembered to ask about it.

I know that we've discussed here that some of the cloud companies flat out claim that they own all of the data on their servers and that they will not give it to the doctors if asked.  I'm guessing that the legal authority for them to do that would be basically the same authority for a billing company to assert ownership of the doctor's data??  Any thoughts?

[PMRNC]

As far as I know there is no legal requirement to provide any "data". Remember that the client provides a "copy" of their source documents for you to provide the data, therefore making it "yours" at that point of translation. Make sense? Now nothing says the doctor can't haul you into court and I've seen billing companies go to court with doctor owing them money, doctor says not paying till I get my data.. I've yet to see a billing company be forced to hand over their data (again, key thing to remember that if you are using your PM software you are preserving your source documents and translating that to YOUR data"

Another thing to remember is that your contract should be VERY specific about an exit plan. If you state exactly what the provider will get upon departure that should be that. 

Richard, this was actually one of the MAIN reasons I went to a diff business model and use the clients PM system, even if they had none or wanted to switch, they purchase/subscribe and this makes that whole ugly mess of exit go away, they buy, they get to keep

[RichardP]

Thanks for the response Linda.

... your contract should be VERY specific about an exit plan. ...

My question was specifically about folks who refuse to provide data to us.  We look at billing as a business.  Clients come and clients go.  Data needs to be transferred in either situation.  For the few who have transferred out (usually to a company that is off-shoring the billing), we provide them whatever data they request, assuming it is possible for us to give them what they ask for.

[RichardP]

... Remember that the client provides a "copy" of their source documents for you to provide the data, therefore making it "yours" at that point of translation. Make sense? ...

That statement of yours provided the trigger for the thought that probably provides the answer.  Under copyright and patent law, if you are employed and paid for your work, anything you create during that employment legally belongs to your employer.  Makes me think that, if you are being paid to do billing, anything you create in that process would belong to the one who paid you.

Works Made for Hire
http://www.copyright.gov/circs/circ09.pdf

If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.  The concept of “work made for hire” can be complicated. This circular refers to its definition in copyright law and draws on the Supreme Court’s interpretation of it in Community for Creative Non-Violence v. Reid, decided in 1989.

If you know of actual cases where the court did not require the biller to turn over their data to their client, then perhaps your definition holds in this situation, rather than the copyright and patent law.  Perhaps it can be argued that the biller is not creating something new when he types or scans data from paper into billing software.  Not creating new data - just changing its form.

[PMRNC]

Richard,

I have been updating our Getting started area and I was looking at this I had from AMA/HBMA from 2007, a bit outdated but MIGHT answer some questions for you.

http://www.hbma.org/uploads/content_files/HBMAFINALwhitepaper%283%29.pdf

Also I've always been curious too about this issue.. as we know in this country anyone can take anyone to court for anything.. so I reached out to an attorney practice I know will be able to shed some light on this. Let you know what I find out. If you read the above .. they both sort of state same thing about the CONTRACT being a vital part.

[RichardP]

Linda - thanks for that.  I'll be interested in your follow-up if you find out anything more.

Re. going to court:  My curiousity doesn't really extend that far at the moment.  Because winning in court is one thing.  Being able to collect or enforce what was won is an entirely different matter.

In most instances when we've needed data from the old billing company, and they refuse to provide it, it is up to the doctor to insist.  Our experience is they don't want to bother.  And building a database from scratch as the patients see the doctor isn't that big of a deal.  Certainly nothing that has risen to the level of thinking that spending time in court is preferred over working the business and earning money.

[PMRNC]

In most instances when we've needed data from the old billing company, and they refuse to provide it, it is up to the doctor to insist.  Our experience is they don't want to bother.  And building a database from scratch as the patients see the doctor isn't that big of a deal.  Certainly nothing that has risen to the level of thinking that spending time in court is preferred over working the business and earning money.

I hope you don't mind a little experience on this.. I learned a long long time ago.. stay OUT of contractual issues between a provider and a former billing company.

this is just another reason why I changed my business model so that the provider is responsible for PM software, support, clearinghouse, etc.. Since I've changed this, I've not had a single problem like this.   WHY do billing companies mess with "DATA" at the end?? I don't know?? I don't want to know.. I don't care to know and I'm so glad I don't HAVE to know.   There are so many ways to avoid this type of situation.

[RichardP]

Agreed.  We don't get involved in contractual issues between doctors and former billers.  For all the reasons you've specified.

[Merry]

I agree with Linda. Exit policy in your contract is important. You can always say that you will give them an electronic copy but hey...they wont usually be able to read it but you are doing what you promised. I would NEVER give up source documents and actually just helped someone with a contract and made sure that they had in their contract that they would be keeping source documents for 7 years. If CMS comes calling or any insurance company, they WILL go to the billing service. Nothing like the provider saying that he or she gave the billing service the correct info and that the billing service changed it. Just dealt with this with a dr that is being sued by CMS for $17 million. Thank goodness the billing service had their source docs.

[RichardP]

If CMS comes calling or any insurance company, they WILL go to the billing service.

Assume paper charts and paper EOBs.  The legal record is the chart, not the electronic data in the billing software.  For a given patient and a given date of service, one can match what is in the chart with what is on the EOB for that date of service.  That would demonstrate whether the billing service billed appropriately.  If the physician has both the chart and the EOB, why would anybody need to come after the billing service?  Other than maybe it would be easier to check the ledger of the billing software rather than find the appropriate paper EOB.  But - since the billing software is not a legal record - how could that electronic ledger be used in any legal proceding in place of the actual EOB for that date of service?

And - rhetorical question for now - how does that scenario translate to the physician who is totally electronic and has no paper records?

[PMRNC]

Assume paper charts and paper EOBs.  The legal record is the chart, not the electronic data in the billing software.

  --- Agree

For a given patient and a given date of service, one can match what is in the chart with what is on the EOB for that date of service.  That would demonstrate whether the billing service billed appropriately.  If the physician has both the chart and the EOB, why would anybody need to come after the billing service

?

Well that is what ANY PM software having an audit trail would show.. Audit trail is ABSOLUTELY necessary for any PM system. It's one of the first things a billing company needs to know if a client has that within their PM system.. I want to know what was changed, entered, and who did it and when!! If any PM software does NOT have an audit trail.. do NOT consider them at all. Hang up the phone, don't waste your money.

I think what your asking Richard is really about "convenience" rather than "law" .. sure a provider would LIKE to have it all load nice and neat in a PM system they can just "open" .. tough cookies.


 Other than maybe it would be easier to check the ledger of the billing software rather than find the appropriate paper EOB.  But - since the billing software is not a legal record - how could that electronic ledger be used in any legal proceding in place of the actual EOB for that date of service?

And - rhetorical question for now - how does that scenario translate to the physician who is totally electronic and has no paper records?

[RichardP]

I think what your asking Richard is really about "convenience" rather than "law" .. sure a provider would LIKE to have it all load nice and neat in a PM system they can just "open" .. tough cookies.

Linda - what you responded to was my response to Merry re. CMS or other insurance auditing a doctor and also wanting to look at the billing service.  That is an issue different from what a billing company legally owes a doctor who is switching billing services.  We switched subjects there for a minute.  It isn't clear to me, from what I read in your response, that you got that distinction.  If you did, then nevermind.

[Merry]

To answer your question..why would CMS want to see.....
Because Dr claimed he gave the billing service codes xxxxx and the billing service billed yyyyy. But when the auditors saw the source docs at the billing service location they showed that the service billed what the Dr gave them. Dr lied. Stripped of billing govt carriers and probably commercials.

[RichardP]

OK.  I think I get it.  In your example, we are not trying to prove what the billing service billed - because that can be determined by looking at the EOB.  We are trying to prove what codes the doctor actually gave the billing service - which can't be done by looking at the EOB (since billing might have changed the codes).  That can only be done by looking at what the doctor gave the billing service.

[Merry]

yes Richard. Sorry that I wasn't clear.