This article was originally published in the NAGTRI Center for Consumer Protection Monthly newsletter.
In 2015, the Consumer Protection Division of the Washington State Attorney General’s Office (“Washington AGO”) began an initiative to prosecute unfair and deceptive trade practices that affect Washingtonians’ access to affordable healthcare under our state Consumer Protection Act (“Washington CPA”).[1] This initiative has resulted in a number of successful enforcement actions that improve access to healthcare in Washington. Although some of the legal theories used in these cases were based upon Washington-specific laws, they drew upon foundational consumer protection concepts and could be replicated under other states’ unfair and deceptive trade practice laws.
Much of our work has focused on consumers’ access to financial assistance to pay for hospital expenses, referred to as “charity care” in Washington. Washington requires hospitals to make financial assistance accessible to patients with income at or below 200% of the Federal Poverty Guidelines.[2] In order to make charity care accessible to low-income patients, Washington requires hospitals to notify patients of the availability of charity care and screen patients for charity care eligibility prior to requesting payment from them. [3]
In 2017, we sued two hospitals, St. Joseph Medical Center in Tacoma and Capital Medical Center in Olympia, (collectively, “the hospitals”), alleging that their charity care practices and attempts to collect payment from patients before treatment violated the Washington CPA. We alleged that each hospital’s practice of demanding payment from patients prior to service without first disclosing the availability of charity care or screening patients for charity care eligibility was unfair and deceptive because it could lead patients to believe that they were required to pay for the out-of-pocket expenses associated with their care prior to receiving treatment. We premised these allegations on the core consumer protection concept that failure to disclose a material fact (in this case, the availability of charity care) is deceptive.
We also alleged that the hospitals engaged in several practices that reinforced the impression that patients were required to pay for their care prior to service before their eligibility for charity care was determined.[4] These practices included: 1) training staff to ask patients how they would like to pay for their care (“cash, check or credit card?”) rather than if they would like to or were able pay for their care; 2) demanding upfront payment from patients multiple times, each time suggesting that the patient pay a smaller sum or utilize a different payment option, such as a payment plan or medical credit card, before providing information about charity care; and 3) refusing to schedule, threatening to cancel, or cancelling outpatient appointments of patients who would not commit to upfront payment arrangements without determining eligibility for charity care.
We obtained significant resolutions in both cases. St. Joseph’s parent company, CHI-Franciscan, entered into a consent decree requiring it to refund $1,800,000 to patients and write off $41,457,108 in unpaid patient accounts through direct refunds and a claims process. The company also agreed to pay $2,460,000 to the Washington AGO and that all eight of its Washington hospitals would be bound by proscriptive injunctive terms governing providing qualifying patients access to state-required charity care and attempts to collect payment from patients prior to providing care.[5]
Similarly, Capital Medical Center agreed to administer a process allowing former patients to apply for charity care, pay $1,200,000 to the Washington AGO and adhere to detailed injunctive terms in administering its charity care program. [6] The restitution processes in both cases allowed patients to sign a simple form to attest that they were charity care qualified at the time of their treatment to receive restitution.
We have also taken enforcement action against hospitals and other healthcare facilities for failing to notify patients that healthcare providers who were not in the patients’ insurers’ network (“out-of-network providers”) would be involved in their care resulting in unexpected additional expense. In 2015, we began to receive an unusually high number of complaints from patients insured through Premera Blue Cross (“Premera”) who received out-of-network bills from a laboratory provider, CellNetix Pathology and Laboratory, LLC (“CellNetix”), for care they received at three prominent healthcare providers that were in-network with Premera: Swedish Health Services (“Swedish”), Providence Health & Services (“Providence”), and The Polyclinic (collectively, “healthcare providers”). Patients complained that their healthcare providers had not notified them that an out-of-network provider would be involved in their care when the patients sought care at in-network facilities. CellNetix’s charges for out-of-network care were substantially higher than those for in-network care.
Following an investigation, we alleged that the healthcare providers’ failure to disclose CellNetix’s out-of-network status was a deceptive omission that violated Washington’s CPA.[7] Because the healthcare providers, not the patients or Premera, decided to send patients’ specimens to CellNetix and patients were not typically even aware of the lab’s involvement in their care until they received bills for their services, we asserted that the healthcare providers were the only entities that could inform patients that they could receive out-of-network bills. Strengthening our claims was the discovery that the healthcare providers maintained exclusive contracts with CellNetix, giving them specific knowledge that an out-of-network provider would serve their Premera-insured patients, and our discovery of internal communications in which the healthcare providers acknowledged the potential for consumer deception in the failure to disclose CellNetix’s out-of-network status to patients.
In 2018, we entered into consent decrees with these healthcare providers requiring them to notify patients when out-of-network laboratories with which they maintained exclusive contracts would be involved in their care. In addition, Swedish and Providence[8] agreed to pay $385,101 in restitution to patients who paid CellNetix for out-of-network costs and $1,053,899 to the Attorney General’s Office; The Polyclinic agreed to pay $24,438 in consumer restitution and $40,235 to the Attorney General’s Office. Other states may also be able to challenge the undisclosed use of out-of-network providers in patient care through their consumer protection statutes.
As a result of these enforcement actions, we have been able to return millions of dollars in restitution to Washington consumers, and enjoin unfair and deceptive practices that would undermine patient access to care.
[1] RCW 19.86.020 prohibits unfair and deceptive trade practices.
[2] Patients with income at or below 100% of the Federal Poverty Guidelines are entitled to full charity care and those with income at or below 200% of the Federal Poverty Guidelines are entitled to sliding-scale, reduced-cost care. See WAC 246-453-010(4).
[3] See RCW 70.170 and WAC 246-453.
[4] Franciscan Health System complaint: https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/StJoesComplaint.pdf; Capital Medical Center complaint: https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/CapitalComplaint.pdf.
[5] State of Washington v. Franciscan Health System Consent Decree, https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/2019_04_29ConsentDecree%20sign.pdf.
[6] State of Washington v. Columbia Capital Medical Center Limited Partnership Consent Decree, https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/2020_01_15_Consent%20Decree.pdf.
[7] State of Washington v. Providence Health & Services-Washington et al. Complaint, https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/2018_03_28Complaint.pdf;
[8] Swedish and Providence are affiliated providers.
