"Take-backs": We Hate the Phrase

The bullies are taking money directly from doctors. After a health insurance company conducts an audit (typically unlawful) and demands that a medical provider pay money back on claims that are closed, it often engages in offsetting. This tactic is when EOBs on new claims — completely unrelated to claims that were audited — show debits and adjustments for funds that the health insurer states are due and owing to it, based upon a prior audit.

This practice, that many in the industry call “takebacks”, is not legal. There are many reasons as to why and how it violates ERISA, the federal employee benefits law passed by Congress in 1974 and signed into law that year. The law governs group health insurance, and there are also regulations that have been passed — and updated — by the U.S. Department of Labor.

And here’s a funny thing: a federal judge, appointed by the President of the United States (as they all are), serving for life, is sworn to uphold the law and the Constitution of the United States.

So what happens when federal judges are confronted with a scenario, properly postured, argued, supported, and explained by a seasoned ERISA legal practitioner who has litigated ERISA cases throughout the country for 21 years? They need to listen, and they can act.

What kind of action? Well, if the law says that a federal judge can “enjoin”, that means an injunction. And an injunction means that the conduct is shut down, per order of a U.S. District Judge.

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