Arbitrator / Mediator / Hearing Officer Services

Michael Roth is an experienced alternative dispute resolution neutral and a significant part of his practice is focused on arbitrating and mediating disputes between hospitals, health care plans, physicians, physician groups, IPAs, third party payors, and other health care businesses.

Click here to see brief description of representative health care cases at which Mr. Roth has served as the arbitrator or mediator.

Click here to see brief  description  of:  (i) representative Peer/Judicial Review Committee cases at which Mr. Roth has served as the hearing officer, and (ii) appellate review cases at which Mr. Roth has served as the Appellate Review hearing officer.

Click here to see brief description of general civil litigation cases where Mr. Roth has served as the mediator.

  • Mr. Roth is a member of the neutral panel of ADR Services, Inc. (as an arbitrator, mediator, and hearing officer).
  • Mr. Roth is a member of the American Arbitration Association’s National Roster of Arbitrators and Mediators (including the National Healthcare Roster).
  • Mr. Roth is empanelled as a dispute resolver in the American Health Lawyers Association Alternative Dispute Resolution Service.
  • Mr.  Roth is a member of the Los Angeles Superior Court ADR Party Select Mediation Panel.
  • Mr.  Roth has, since 2009, served as the arbitrator in over two dozen arbitrations related to disputes between health care providers and between providers and third party payors, and this includes having served on three-member arbitration panels.  Arbitrated issues have included medical necessity, level of care/coverage (including payment disputes involving out-of-plan care), application of stop-loss provisions, fair market value determinations, and contract disputes.
  • Since 2009, Mr. Roth has served as the mediator in over three dozen Los Angeles Superior Court cases.
  • Mr. Roth has extensive experience serving as a hearing officer or arbitrator at judicial review committee/fair hearings and as hearing officer at appellate review hearings in hospitals, health plans, and other managed care settings.
  • Mr. Roth’s experience as a factfinder includes his having: (i) served for many years as a Reconsideration Hearing Officer where he resolved coverage and payment disputes between a Medicare health plan and its enrollees, and (ii) served as a member (by gubernatorial appointment) of a licensing board in the California Department of Consumer Affairs (twice serving as its president), wherein Mr. Roth’s statutory duties included participating in making decisions on matters of licensure and discipline respecting licensees.
  • Mr. Roth’s training as an arbitrator and mediator includes his having completed: (i) ADR Arbitration Training Program sponsored by American Health Lawyers Association (“AHLA”) and JAMS; (ii) Prescription for Healthcare Disputes: Exploring Alternative Dispute Resolution Solutions sponsored by American Arbitration Association (“AAA”); (iii) Provider Payor Arbitration Rules Training sponsored by AAA; (iv) Fundamentals and Best Practices for AAA Arbitrators sponsored by AAA; (v) Advanced Mediation Training sponsored by AHLA;  (vi) Mediation Training Course sponsored by Los Angeles County Bar Association Dispute Resolution Service; (vii) American Institute of Mediation: Mediating Commercial and Litigated Cases; and (viii) Straus Institute for Dispute Resolution, Pepperdine University School of Law: Mediating the Litigated Case.
  • Mr. Roth is a member of the Southern California Mediation Association
  • In serving as an arbitrator, Mr. Roth places importance on: (i) ensuring that the parties are given every reasonable opportunity to present their cases and be heard, (ii) allowing the parties to agree upon evidentiary and procedural matters to the maximum extent possible, (iii) managing the process efficiently, and (iv) making fair decisions in accordance with applicable law.
  • Mr. Roth’s approach as mediator is tailored to the circumstances of each case.  He endeavors to create an environment which is conducive to sucessful mediation, uses respectful tenacity to help move the parties toward agreement, and works with the parties to creatively bridge those impasses as needed for them to reach resolution.

SAMPLE ADR HEALTHCARE CASES

– Claim by a cardiology group for payment of fair market value (“FMV”) in an amount of over $11,300,000 for operating the cardiac catheterization laboratories at two hospitals pursuant to an “under arrangement” contract it had with the hospitals. Primary issues included calculation of FMV and whether the hospitals breached the contract by prematurely terminating their contract with the group.

– A hospital claim against a health plan that it was entitled to payment of its billed charges in an amount of over $275,000 (plus interest pursuant to California Health and Safety (“H&S”) Code §1371) based upon its having provided non-contract emergency care services to the plan’s members. Primary issues included: (i) calculating amounts due under H&S Code §1371.4(b) and 28 California Code of Regulations §1300.71(a)(3)(B), and (ii) whether patients were members of the health plan.

– A contract claim by a hospital seeking to obtain payment in an amount of more than $800,000 from a health plan for services that the hospital provided to a beneficiary for whom the plan and/or plan-affiliated IPA were alleged to be responsible. Hospital claimed that the plan and IPA violated California Business and Professions Code §17200 by engaging in conduct intended to stymie or delay payments.

– A breach of contract claim by a hospital against a health plan based upon the plan’s failure to list the hospital in the plan’s on-line and print directories in accordance with the contract between them. Primary issues included whether: (i) the plan materially breached the contract, (ii) the hospital was entitled to be compensated as a non-contract provider, and (iii) the hospital was entitled to lost profits.

– A contract claim by a provider of therapy services sought to obtain payment in an amount of over $700,000 from a skilled nursing facility (“SNF”) for services that the therapy provider furnished to the SNF’s patients. Issues included whether: (i) contract claims were waived, and (ii) the claimant failed to mitigate its damages.

– A medical billing service (claimant) sought payment from a physician practice for billing services which it furnished on behalf of the physician. Primary issues included whether claimant miscoded claims and failed to timely submit claims.

-A specialty medical group sought payment from an IPA in the approximate amount of $63,000 for services furnished to patients for whom the IPA was alleged to be responsible. Primary issues included whether: (i) the patients listed in the group’s accounts receivable were enrollees of the IPA, and (ii) the IPA was otherwise responsible for these patients.

– Claim by a licensed dental health plan for refund of payment which it made to one of its in-plan dentists based upon the dentist’s failure to employ standard diagnostic and treatment protocols for a specific patient in accordance with the applicable standard of care. At issue was whether the dentist met the standard of care in treatment of the patient.

– Claim by a hospital that a payor failed to reimburse the hospital in accordance with the payor’s HMO/ PPO contracted rates in connection with services furnished by the hospital to the payor’s members/insureds. Issues included: (i) level of care, (ii) medical necessity, (iii) stop-loss calculations, and (iv) financial responsibility of a related IPA.

– Claim by an acute care hospital (“Hospital”) that a third party payor (“Payor”) breached the agreement between them (“Agreement”) when the Payor denied payment for services furnished by the Hospital in its neurological step-down unit to one of the Payor’s insureds for a 17-day period (the “Services”).  To determine whether the Payor breached the Agreement, primary issues included whether: (i) the insured was stable for transfer from the Hospital prior to his discharge date and, if so, when was he stable for transfer, and (ii) the Services, or portions thereof, could have been provided at a lower level of care facility and thereby were not “medically necessary” under the Agreement.

– Claim by a tertiary care hospital (“Hospital”) that it was entitled to be paid approximately $300,000 by a third party payor (“Payor”) as a contracted in-plan provider for obstetric/neonatal intensive care unit (“OB/NICU”) services which it had furnished to one of the Payor’s enrollees.  Primary issue was whether the patient: (i) went out-of-plan when she (and her infant) obtained the OB/NICU services because she was enrolled in a payor-designated PPO that did not have a contract with the Hospital, versus (ii) stayed in-plan when she obtained the services because the Hospital was a participating facility in a network (“Network”) with whom the Payor had contracted to obtain discount rates from the Network’s facilities.

– Ambulatory surgery center (“ASC”) claimed that a governmental third party payor (“Payor”) underpaid it by over $1.2 Million for a specified surgical procedure (the “Procedure”) which it had furnished to the Payor’s enrollees over an extended period of time pursuant to a written agreement between the parties (the “Agreement”). Contract terms in dispute included provisions which specified an exact amount to be paid for each Procedure and also stated that the ASC would be paid no more than what was permissible under Federal law.  Primary issues included whether: (i) the Payor breached the Agreement when it sought to recoup prior payments it had made to the ASC based upon its adopting a new reimbursement rate for the Procedure to be retroactively applied,  (ii) the Payor was equitably estopped from recouping these prior payments, and (iii) applicable law required the Payor to recoup the prior payments.

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SAMPLE PEER REVIEW HEARINGS (Including Peer/Judicial Review Committee Hearings described at ¶A below and Appellate Review Hearings described at ¶B below).

A. Peer Review/Judicial Review Committee Hearings.

– OB/GYN required by the hospital’s medical executive committee (“MEC”) to comply with a concurrent proctoring requirement, and subsequently the MEC summarily suspended the physician’s clinical privileges. Issues included (in part): (i) the physician’s care, treatment and management of an unstable newborn, (ii) the physician’s response to urgent C-sections in several cases, (iii) whether the proctoring requirement imposed on the physician was reasonable and warranted, and (iv) the physician’s working relationship with nurses and hospital administration vis-à-vis patient care.

– A hospital’s MEC summarily suspended a surgeon’s clinical privileges based (in part) upon the surgeon’s alleged failure to demonstrate professional competence and good judgment. Issues included (in part): The medical standard of care in a large number of cases which, for example, included the surgeon’s: (i) technical proficiency in placement of central lines, (ii) management of a patient’s complications after performance of a left carotid endarterectomy, (iii) time taken to perform a laparoscopic ventral hernia repair before converting to an open procedure, and (iv) judgment in regards to performing a laparoscopic cholecystectomy on a patient.

– A large multi-specialty medical group (the “Group”) summarily revoked the clinical privileges of an anesthesiologist based upon his testing positive on a random drug test while participating in a California Medical Board Diversion Program (the “Program”). Issues included (in part): Whether: (i) the positive test result was based upon the physician’s accidental exposure to the drug during surgery as opposed to self-medication, and (ii) the physician timely advised the Group of the positive test result.

– A health plan (the “Plan”) terminated a participating physician based upon: (i) the physician’s practice having failed Plan-conducted referral audits, medical record audits, and facility site audits, and (ii) the physician’s failure to maintain adequate medical records. Issues included (in part): (i) the accuracy of the audit results, (ii) the accuracy of the audit result tabulations, (iii) mitigating circumstances related to certain field audits, and (iv) the overall sufficiency of the evidence presented by the Plan in support of the physician’s termination.

– A hospital’s MEC recommended non-reappointment of a physician to the medical staff on grounds that the physician’s primary office and residence were not located within the required geographic area to belong to the medical staff. Issues included determining the location of the physician’s primary office and primary residence.

B. Appellate Review Hearings:

– JRC Decision: A Judicial Review Committee (“JRC”) upheld the MEC’s denial of a surgeon’s application for staff membership and clinical privileges at the hospital. The underlying JRC hearing was focused on numerous cases pertaining to the physician’s professional conduct and clinical competence

Focus of Appeal: The appellate review panel considered a number of issues which included (in part) whether: (i) the physician was denied fair procedure by the JRC’s reliance on uncorroborated hearsay evidence in the form of written incident reports,

(ii) there was substantial evidence in support of the JRC’s findings that the physician was disruptive and behaved unprofessionally with nurses, patients, and staff on several occasions, and whether there was a nexus between his conduct and patient care, and

(iii) there was substantial evidence in support of the JRC’s findings that the MEC had abused its discretion in finding that the physician was not clinically competent.

– JRC Decision: JRC: (i) modified a requirement that an OB/GYN’s next specified number of vacuum extractor (“VE”) procedures be concurrently proctored, and (ii) upheld a requirement that the OB/GYN improve her relationship with the nursing staff. The OB/GYN and the MEC each appealed the JRC decision.

Focus of Appeal: The appeal panel considered: (a) whether there was substantial evidence in support of the JRC’s findings concerning the OB-GYN’s inappropriate use of VEs, (b) whether there was substantial evidence in support of the JRC’s modification of the VE-proctoring requirement, and (c) whether there was substantial evidence in support of the JRC’s requirement for the OB/GYN to improve her relationship with the nursing staff.

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SAMPLE ADR GENERAL CIVIL LITIGATION CASES

Under an arrangement between defendant/cross complainant (a business which containerized automobiles for export from the United States) and plaintiff/cross defendant (a business which arranged for the transportation of vehicles from the United Stated to overseas countries), defendant containerized for export the vehicles of plaintiff’s customers. Matters at issue included whether: (i) defendant failed, over an extended period, to load keys, manuals, floor mats, and other accessories when containerizing vehicles of plaintiff’s customers, and whether these claims had been waived by plaintiff, (ii) defendant wrongly released two vehicles to a third party, which resulted in plaintiff’s customer having purchased the vehicles and then being unable to ship them overseas and resell them, and (iii) defendant’s claim for payment for the containerization services which it had provided to plaintiff.

Dispute between three members of a partnership formed for the purpose of purchasing numerous properties, a restaurant, and a residence. One of the partners (i.e., plaintiff) contended that the other two partners (i.e., the defendants) breached the oral partnership agreement by, inter alia, fraudulently covering up business losses and using the partnership’s properties and assets to secure personal loans. Defendants denied these claims, and cross-complained that plaintiff breached the agreement by failing to pay plaintiff’s share of the losses sustained by the partnership.

Americans with Disabilities Act dispute in which plaintiff claimed that defendant’s retail business did not provide handicapped parking spaces at the business. Matters at issue included whether adding any handicapped parking spaces was “readily achievable” under the Act.

Vehicle on vehicle automobile accident. Matters at issue included who was at fault for the accident and, if defendant at fault: calculation of damages (including defense that plaintiff’s medical costs were improperly upcoded and/or were for services not rendered).

Plaintiff attorney entered into a written contingent fee agreement with defendant-client for the purpose of representing defendant in the collection of a commercial account from a third-party business; attorney subsequently represented defendant in the collection matter and other matters against the same third party-business. In a global settlement of all matters between defendant-client and the third party-business, the defendant made no recovery, and claimed, therefore, that no payment was due to the attorney under the contingent fee agreement. At issue was what amount, if any, was defendant obligated to pay plaintiff for legal services rendered.

Insured claimed that her defendant-insurance broker was negligent when he made representations on which she relied to purchase health insurance, which provided costly and unnecessary coverage for her and her son. At issue was whether: (i) the broker breached the standard of care owed to client, (ii) alternative coverage was available in the marketplace at the time when plaintiff first purchased the policy at issue, and

(iii) preexisting conditions of plaintiff’s son would have precluded the purchase of alternative coverage.

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