Understanding the Need for Useful Ambiguity in Contracts

Understanding the Need for Useful Ambiguity in Contracts

In considering the wording of contractual language, consider avoiding creating new problems for yourself.

A clinic recently contacted us about an insurance contract featuring a poorly written policy describing the coverage of services incident to another physician’s services. 

This particular insurer began with language mirroring that of Medicare. It noted that “incident to” physician’s professional services means that health services or supplies are furnished as an integral, although incidental, part of the physician’s personal professional services, in the course of diagnosis or treatment of an illness or injury. 

As an aside, I want to reiterate that when people say you can’t do new problems “incident to,” they are wrong, because they are mistakenly disregarding “course of treatment” and replacing it with “new problem.” 

Those are different. But I digress. 

The policy notes that an employee of the physician must render service under the physician’s direct supervision. It then says “health care professionals who are issued individual provider numbers are considered incident to the physician when performing the health services within the same encounter on the same day as the physician.” 

The client wanted to know whether a healthcare professional with an individual billing number can be incident-to when providing services on a different day as the physician. That policy doesn’t directly address this. It is not written very well, and the insurer’s intent is far from clear. We were discussing this with the client when the client inquired, “should we call the insurer and ask them what they think?” 

While that is certainly an option, it’s definitely not the one I would choose. I completely agree that the insurer’s policy is vague. But that ambiguity can be an advantage. 

How can the insurer argue that you have broken a rule when they failed to articulate it? There is an old saying, I think it’s “don’t look a gift poorly drafted regulation in the mouth.” If a robber asks you to empty your front pockets, but not your back pockets, would you helpfully offer “don’t you want my wallet?” 

Perhaps I need to apologize to any insurers who are reading for that analogy, but I do think that most insurers would agree that they have a goal of limiting their coverage. 

My question: why make that easier for them? I am a staunch advocate of following the rules. But following the rules doesn’t mean you need to suggest new ones. 

In this case, seeking clarification is akin to saying, “there’s a way you can my life more difficult, but you haven’t done it yet. Can I offer you some tips for really sticking it to me?” 

Don’t do it. 

When a policy permits the action you desire, don’t let the fact that it is poorly written trick you into giving the insurer another chance to complicate your life. 

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David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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