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A little-known state statute that allows an individual to recover damages for the theft of services is being used for the first time against a health insurer in a class action filed in Austin on Sept. 28 by a group of Texas physicians. “Texas physicians are being robbed blind,” alleges Robert Provan, one of the attorneys representing the 29 physicians who filed David E. Rogers v. Cigna Healthcare of Texas Inc. Provan, with Austin’s Provan & Associates, says he came up with the idea of suing Cigna under the Texas Theft Liability Act because his clients kept telling him they felt like they were being robbed. The 1989 law is one of four causes of action pleaded in the suit. Jim George, another attorney who represents the physicians, says the statute is designed to protect people who do work for which they don’t get paid. This is the first time it has been used against a health maintenance organization, he says. A law professor who specializes in health-care law is skeptical about whether it will be a successful legal theory. “I think it’s very creative lawyering and something of a long shot,” says Tom Mayo, a professor at the Southern Methodist University Dedman School of Law. To have a cause of action, the plaintiffs must show they are the victims of theft, as defined by the Texas Penal Code, Mayo says. He questions whether the definition applies in this case. George, a partner in Austin’s George and Donaldson, says he believes the law applies to physicians’ services. Under the law, a plaintiff can recover actual damages plus up to $1,000 for each service performed for which full payment is not made. Filed in the 345th District Court, the suit alleges Cigna took services from the physicians with the full intent of avoiding payment for those services and that the insurer’s conduct amounts to theft of services under Texas Penal Code �31.04(a). The suit alleges that Cigna intentionally uses computer software programs to reduce arbitrarily the amounts owed to doctors, rejects just claims outright and imposes complicated procedural requirements for processing claims. Each medical procedure or service is identified by a current procedural terminology code, and a physician must itemize services for which payment is sought by the CPT code, the suit alleges. As alleged in the suit, Cigna engages in “downcoding,” systematically substituting a lower reimbursed payment code than that of the service or procedure rendered. Another procedure used by Cigna to reduce the amount it pays, the suit alleges, is the “bundling” of various services or procedures and paying for only one. The suit further alleges that physicians are left in the dark about the fees that Cigna pays because the company routinely fails to provide its maximum fee schedule to doctors as part of their contracts. Class representative Dr. Bohn Allen, an Arlington surgeon, says he was provided the fee schedule for his top CPT codes but that Cigna doesn’t always pay the amount stated for a code. “We’re trying to get them to change their procedures, to deal with us in a fair fashion,” Allen says. Cigna spokeswoman Tania Graves says the company believes the suit is unwarranted. In a written statement released on Oct. 1, Graves states, “We take our claims processing and payment responsibility very seriously. We make every effort to pay properly coded and legitimate claims promptly and accurately on behalf of our 14.3 million plan participants nationwide. We value our relationships with physicians, providers and regulators. Maintaining those positive relationships by paying them fairly is important to us and makes good business sense.” The suit seeks to invalidate Cigna’s agreements with physicians if the contracts fail to disclose either the fee to be paid for a service or the methodology used to determine that a claim is not valid. The physicians are asking the court to find that they must be paid the full value for services they have performed. If the court finds the agreements valid, Cigna’s actions breached the contracts and breached the company’s duty to deal fairly with the plaintiffs who have suffered damages, the suit alleges. Notes Provan, “Our goal is simple — we just want to see that Texas doctors are paid for what they do.”

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