Janice Sperow has been a part-time neutral for over three decades and a full-time neutral for nearly one.
Her healthcare expertise comes from serving as sole, panel, and Chair arbitrator in hundreds of healthcare-related matters, ranging from single provider-single payor disputes to complex high-value, multiparty, multi-division, consolidated proceedings, including service as an expedited and emergency arbitrator.
Cases have included sampling and extrapolation, bellwether proceedings and application of rulings to the remaining inventory of claims, and serial issue adjudication phasing, bifurcation, and bucketed hearings by contract issue or timeframe.
We asked her how her expertise informs her approach on the American Arbitration Association® Healthcare Panel.
Q. What types of healthcare disputes do you typically handle as an arbitrator or mediator?
I have had the privilege of handling a variety of complex healthcare and life sciences disputes, ranging from the typical payor-provider disputes to more discrete single-issue challenges, such as application of the Two Midnight Rule in Medicare cases. The range of issues have included nearly every aspect of the healthcare industry and revenue cycle, including medical necessity; retrospective reviews; proper HCPCS, DRG, and other coding and billing; network suspension and termination; failure to exhaust administrative remedies and statute of limitations defenses; level of care determinations; staffing privileges and requirements; healthcare algorithm and automated claims processing use; medical device coverage; Medicare and Medicare Advantage compliance; coordination of benefits; ERISA preemption; third-party administrator fiduciary duties; the 340B discount program; pharmacy network suspensions and terminations; participating and nonparticipating provider contracts; Knox-Keene; HIPPA compliance; discharge placement delays; reimbursement rate calculations and methodologies; coverage and exclusions; post-acute care; long-term care facility participation agreements; anesthesia provider contracts; third-party administrator cross-offsetting, high-cost passthroughs; contract interpretation; and more. As a roster member for the AAA employment, intellectual property, consumer, and technology panels, I enjoy handling many complex cross-over disputes featuring employment, intellectual property, consumer, and technology claims in the healthcare space. For example, I oversaw a mass claims arbitration involving the alleged breach of privacy by hospitals using pixel tracking on their patient-facing portals and served as an arbitrator in a statewide healthcare software trade secret dispute.
Q. What drew you to ADR work in the healthcare space? What do you value most about serving as a neutral on the AAA’s Healthcare Panel?
Given the importance of healthcare to the American economy, I found the ability to tackle complex issues more efficiently in a fair and well-structured, customized process critical. I thrive on adjudicating multilayered issues in this highly regulated industry and value the opportunity to decipher and reconcile the competing laws, regulations, contracts, and party interests.
Q. How has your judicial experience shaped the way you approach healthcare arbitration or mediation?
I import the substantive analytical skills, the writing strengths, and managerial leadership from my experiences as a Second Circuit and Ninth Circuit clerk and eight-year Judge Pro Tem without the high-cost litigation attributes of the judicial forum. Critically, I endeavor to structure a fair proceeding in which the parties obtain the information necessary to present their respective cases without the formality and added costs associated with formal litigation. In brief, my experience shaped the way I think about issues at a deeper jurisprudential level yet taught me to avoid the cost-prohibitive trappings that can follow.
Q. Are you noticing any emerging issues or trends in healthcare cases coming to arbitration?
The latest wave of issues I see moving through our industry are: the practice of cross-plan offsetting; affordability and intense cost pressures on all stakeholders resulting in higher regulation and scrutiny; large scale data breaches and systemic disputes; antitrust, data sharing, and pricing concerns; Medicaid disputes post-OBBBA implementation; increased state level enforcement actions with resulting federal-state tensions; and the use of technology and AI in healthcare, including claims automation.
Q. What advice do you have for parties preparing for arbitration or mediation in complex healthcare disputes?
Ah, so many ideas to share. The top tips:
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Phase your case adjudication to build in off-ramps for the parties to resolve the case at significant junctures. For example, if the high-value claims turn on a key contract provision’s interpretation, adjudicate that issue first, giving the parties time to resolve the remaining claims subject to the panel’s ruling. If most claims require application of a passthrough or reimbursement policy determination, or a statute of limitations defense, try that issue upfront, giving the parties space to settle the case based on the panel’s Phase I ruling.
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Organize your presentation around the core dispute, tie it to the law and contract – show how the law and contract support your desired outcome even as you delve into the weeds of the claims.
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Do not forget the case law! So many healthcare cases revolve around the medical records, contracts, and policies, that practitioners sometimes forget to cite controlling law.
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For claim-by-claim analysis, create a claim number for each patient to preserve their privacy, link the matching medical records to a joint exhibit with the same number, and prepare a claim spreadsheet for the evidentiary hearing that cross-references the claim number, joint exhibit number, expert report citations, key disputed issues and defenses, and any other high level important attributes in play with room for the panel to take notes by claim.
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Use one agreed-upon password for all parties for all secure transmissions to the panel for the whole case. The panel can then memorize the single password, avoid writing it down, and heighten security.
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Bucket claims by legal issues, timeframes, level of care, or any other controlling factors.
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Present your evidence by issue and identify the claims to which it applies. For example, select your top two claims illustrating your position on an issue, prove them, and alert the panel that the same issue applies to the following list of claims. Then move on to the next issue and repeat. Just be sure that the panel can examine the record to verify that the listed claims indeed track the same issue.
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Counterargue and rebut. All advocates know to prove how and why they should prevail. Go the next step and respectfully show how the opposing party’s position does not work – either as a matter of law, contract, practice, or just common sense. Give the panel not only the reasons why it should rule in your favor but also the confidence to understand why the healthcare industry benefits when they do not rule in your opposing party’s favor.