RPC files Amicus Brief: In re Allstate Indemnity Co.

On March 25, 2021, RPC filed its amicus curiae brief. Attorneys with Graves Dougherty Hearon & Moody, PC, and Armbrust & Brown, PLLC, wrote the brief. RPC filed the brief after oral argument and after many other briefs by the parties and other interested parties. A copy of the brief is available here

The case challenges a trial court’s decision to exclude the Section 18.001 counter affidavit of Ms. Dickison on reasonableness of charges. It also asks whether mandamus is appropriate when a court strikes a Section 18.001 counter affidavit.

RPC filed the brief to address several topics we felt needed to be addressed in greater detail and other topics we felt RPC was well qualified to address.

• A major issue in the case is the qualifications needed for a counter affiant to opine on reasonable charges for medical services. RPC observed there is no consistent holding on “the expertise required by law of this State” to opine on reasonableness of charges. Opinions on medical necessity require clinical expertise. Opinions on reasonableness of charges do not. Instead, a person qualified to opine on the reasonableness of charges must understand how to compare the charges at issue to some benchmark of reasonableness.
• The counter affiant in Allstate based her opinion on the usual, customary, and reasonable (“UCR”) method. This method is an industry standard for assessing the reasonableness of any provider’s charge. The brief explains to the court the sources and methods an expert using the UCR method applies to reach an opinion whether a charge is reasonable.
• The brief explains why it was reasonable for Ms. Dickison to analyze whether the provider had properly billed for its services using standard billing codes, and why she was qualified to do that analysis. The trial court apparently agreed she was qualified to perform a coding analysis. The trial court concluded Ms. Dickison is a “highly-qualified medical coding and auditing expert.”
• The brief explains why the sources and methods Ms. Dickison used to determine the maximum reasonable charge for these services were reasonable and generally accepted by experts for plaintiffs and defendants. We noted RPC uses other equally reasonable sources and methods to analyze reasonableness of charges. We defined “percentile” and explained why the 75^th or 80^th percentile is a reasonable choice for the maximum reasonable charge.
• The brief points out the expertise most useful in determining a maximum UCR percentile reasonable charge includes familiarity with medical claims; standard coding systems; definitions of medical markets; sources and contents of claims data files; calculation of percentile values from claims data files; and statutes, rules, and business practices affecting choices of percentile values by payors, governments, and commercial services such as Context4Health. Persons with degrees in economics, public policy, business, statistics, public health, and similar fields often have this knowledge and these skills, but they are not specific to any academic discipline or degree—and certainly not to the training provided in medical or nursing school. They are gained through experience.
• Procedurally, the brief points out Section 18.001 is about giving notice of intent to dispute a charge. A hearing on a counter affidavit should not be a Daubert/Robinson Section 18.001 does not require defendants to establish the admissibility of counter affiants’ opinions. Section 18.001 does not accelerate resolution of expert evidence disputes.

RPC hopes the brief is helpful to the Supreme Court and to other interested parties as we await the Court’s decision.

View RPC’s Amicus Brief here