Is New York’s “Surprise Bill” Law a Model for Federal Legislation? Yes and No.

There’s a big fight brewing in DC. No, not the one between the “Squad” and President Trump, which will likely be forgotten as soon as the outrage addicts need a new fix. The fight we’re talking about will have a much greater impact on Americans and is occuring between insurers and hospitals over various proposals to combat “surprise bills.”

The bottom line: as these behemoths clash, patients and physicians — those who need medical care, and those who deliver it — are set to be further marginalized.


We interrupt this blog post for a quick, but important, Action Alert: The bill furthest along at the moment is the Senate HELP bill, S 1895, which is now eligible for a vote on the Senate floor after passing through committee on July 8. A favorable (but unrealistic) CBO score has also been issued, increasing its chances for a vote. CALL BOTH OF YOUR U.S. SENATORS and tell them to VOTE NO on S 1895 if it comes up for a vote. The fastest way to reach your Senators is by calling the Capitol Switchboard at (202) 224-3121.


A review of the the major problems with S 1895, and others like it, can be found here, here, here, and here. S 1895, while containing potentially a few helpful provisions, is for the most part, putting band-aids on top of existing failed cancerous policies — band-aids that will exacerbate the disease instead of excising the tumor causing it. Not to mention that insurance-company controlled “unsurprise bills” may be a significantly bigger problem than surprise bills, as disintermediator Dave Chase explains. In addition the bill imposes system-wide rules to address a problem that is not as widespread as advertised. “The cost of surprise bills is a small portion of all health care spending…,” reports the CBO in its score of the bill.

In the physician community, some are suggesting that legislation like S 1895 would be acceptable if arbitration provisions are included. There is also a suggestion that a competing bill over on the House side, HR 3502 (Ruiz/Roe) is the compromise bill that can be supported, because it includes an arbitration option, and is modeled after New York’s heralded surprise billing regulations. [Update: similar arbitration provisions have now also been added to the House E&C legislation (HR 3630) addressing surprise bills.]

As state regulation of market transactions go, NY’s surprise billing law seems to cut a reasonable path. It prohibits abuses by hospitals without swinging the pendulum too far in favor of insurers. It permits a reasonable level of flexibility for patients and physicians to interact on mutually agreeable terms.

But does HR 3502 really mirror NY statue? Both do allow for arbitration, but aside from that the similarities meaningfully end.

Here are some key differences:

1) The NY law kicks in only with charges above 120% of the Usual and Customary, defined to mean “the eightieth percentile of all charges for the particular health care service.” That’s a pretty high bar that helps contain overregulation.
https://www.nysenate.gov/legislation/laws/FIS/602
https://www.nysenate.gov/legislation/laws/FIS/603

Conversely, HR3502 sets a benchmark price at “the commercially reasonable rate, as determined by the plan or issuer.” That is drastically one-sided in favor of insurers and likely unconstitutional, argues a former U.S. Solicitor General.

Yes arbitration may help provide relief from this extreme price setting to hospitals, and health systems, and “Wall Street-owned doctor groups” who can afford the expense, but arbitration is not a meaningful option for small or independent practices in many cases. 

2) Also the NY law defines “Surprise Bill” in a way that allows patients and physicians some ability to voluntarily opt out of limitations, if both parties desire, i.e.: “a surprise bill shall not mean a bill received for health care services when a participating physician is available and the insured has elected to obtain services from a non-participating physician….” And under the NY law, patients have to take an affirmative step to trigger a prohibition on balance billing: ” When an insured assigns benefits for a surprise bill in writing to a non-participating physician that knows the insured is insured under a health care plan, the non-participating physician shall not bill the insured except for any applicable copayment, coinsurance or deductible that would be owed if the insured utilized a participating physician.” https://www.nysenate.gov/legislation/laws/FIS/608

HR 3502, on the other hand, makes no provisions for patients and physicians voluntarily opting out of the provisions of the legislation, and in fact levies fines and penalties on physicians who don’t comply: “if such nonparticipating provider holds such individual liable for a payment amount for such an item or service furnished by such provider that is more than the cost-sharing amount for such item or service … such provider shall be subject … to a civil money penalty of not more than an amount determined appropriate by the Secretary for each specified claim.
https://www.congress.gov/bill/116th-congress/house-bill/3502/text

So back to the question posed in the title of this post, is the NY surprise billing law a model for federal legislation? If it were actually being followed as a model, the answer might be “yes.” But given the existing bills on the table in DC, the answer is “no.” NY law is being followed as a model in name only, not in practice.

Ultimately, the phenomenon of surprise bills signals a more fundamental problem: past failed policies that tilt the playing field in favor third party payment and punish direct payment limit patient options and are impeding market forces from squeezing out costs that line the pockets of administrators and middlemen who add minimal or no value. It is past time to level the playing field and unleash innovations that will allow those who care for patients the freedom provide an abundance of lower cost, high-quality options.

Dear CNBC, Please do your research before you comment…

Dear CNBC, please be advised that before you criticize anything, you should do your research. The unaffordable careless act, known as ACA Obamacare, has changed the entire field of health insurance to few government approved and some Medicaid subsidy plans. More than half the exchange insurance co-ops started with taxpayer dollars are now bankrupt.  Most private insurers have left Obamacare exchanges leaving monopolies or even threaten to leave no insurers present to prevent citizens from being fined by the IRS for not buying nonexistent policies(see stats below). 

ACA Obamacare has trashed the whole industry and taken competition out of the equation, leaving only high prices and poor coverage. Let me know if you need anything further.

Best wishes for good health,

Craig M. Wax, DO

Family Physician

Media host

National Physicians Council on Healthcare Policy member

—————————
Original post:

Trump trips up as he trashes Obamacare

Dan Mangan, CNBC

http://www.cnbc.com/2016/10/25/trump-says-his-workers-having-tremendous-problems-with-obamacare.html

In 6 Charts, the Rising Costs of Obamacare Rates

Educating Legislators about Dangers of Interstate Medical Licensure Compact

Is your state considering entering the Interstate Medical Licensure Compact?  Educate your legislators about why this is a bad idea. Below is a sample letter you can use to assist your outreach efforts.  Even if your state isn’t yet a target start educating your legislators and colleagues today!

Dear Members of the Colorado House of Representatives,

Thank you for your dedicated service to the citizens of Colorado.

We are writing to voice concerns about HB 16-1047 which, if passed, will sign Colorado on to the Interstate Medical Licensure Compact. The Interstate Medical Licensure Compact “may seem like a positive step” at first glance, warns CATO adjunct scholar Shirley Svorny, PhD.  She continues, “[t]he compact is being promoted, disingenuously, as addressing license portability and access to interstate telemedicine…. Adding the Compact Commission creates another layer of bureaucracy and costs.”

States that are closely looking at the Compact are increasingly rejecting it and exploring other state-controlled policy options to better accomplish the goal of license portability. Continue reading

Setting the Record Straight on Horizon BCBS

Dr. Wax writes NJ.com columnist Susan Livio  in repsonse to her February 16, 2106 article, “See why Horizon paid $3M in bonuses to N.J. doctors.” 

Dear Ms. Livio

Your article on Horizon insurance’s program to incentivize physicians was not a balanced view of the program or company.  It also misrepresented the so-called “affordable care act.” Neither entity has done anything to bring down the high cost of health insurance but to force Americans to buy it from profiteering high overhead entities under penalty of law.

Horizon Blue Cross Blue Shield of New Jersey is notoriously one of the most difficult insurance companies to deal with. Their denial rates for payment, denial rates for medications and tests, and poor communications skills are just a few of their issues. Both their patient and “provider” help desks are located off shore in the Philippines or India, despite their massive holdings in the state of New Jersey. One must not forget their bankruptcy in the 1990s, where they were forced to change their company from New Jersey Blue Cross Blue Shield to “Horizon.”  Continue reading

$23 Million Hospital Propaganda Against Doctors

Guest Post from Gene Uzawa Dorio, M.D.

When well-educated medical professionals have no voice, and hospital administrators control public relations, swaying opinions can be harmful to patient care.

Below is my recent posting revealing intentional finger pointing away from the true cause of poor healthcare in our country. It is nationwide, and should be examined in your community.

Thank you for listening.

Gene

$23 Million Hospital Propaganda Against Doctors

On occasion, I feel compelled to put in my two cents at Santa Clarita City Council meetings. Recently there was a five hour meeting about whether the city should subsidize the artsy Laemmle theatre as an anchor to revitalize business in Old Town Newhall.

This is what I said:

As a physician, my job is to weigh risks and benefits.

Advancing technology and research has improved my ability to practice medicine. We don’t give children cough syrup laced with morphine or heroin anymore. Blood letting has been discontinued. Lobotomies are now only reserved for Washington D.C. politicians. Continue reading

Resolved: End Re-certification Abuse

Resolution on Re-Certification Sent to NJAOPS HOD

To:       Robert Bowen, Executive Director, NJAOPS

Paul Morris, D.O. Speaker of the House, NJAOPS
Robert Pedowitz, D.O.,President, NJAOPS
Michelina Desantis, D.O., President-Elect, NJAOPS
Ira Monka, D.O., Member, AOA Board of Trustees
Al Talone, D.O., Chairman, JOPAC

Re:        Proposed Resolution on Re-Certification

Date:    Feb 10, 2016

RESOLUTION

Whereas Board Certification was always intended to be a one time accomplishment based upon completion of a course of intensive training, clinical experience and study, followed by an examination and Continue reading

Sunshine Needed as Corrupt Bureaucrats Attack Physicians and Patients

Guest Post from Gina Reghetti, D.O.

FYI, read the article about sunshine laws and my response copied below to the Trumbull County Ohio Tribune Chronicle regarding what happened to me. Let’s see if they publish it! So sick of the cover-up corruption everywhere.

Dear Editor:

I read the article in the Tribune Chronicle, “Officials need more focus on sunshine laws” today on January 17, 2016, and I agree that more emphasis must be placed on the rules that are established through Ohio’s Sunshine Laws, and the laws must be enforced.

I am a victim of the Champion Township Trustees’ Special Meeting of 10-30-2012 in which two of the trustees, Bob Farmer and Jeff Hovanic, along with Champion Township Zoning Attorney Mark Finamore, attempted to harm my livelihood in an illegal attempt to re-zone my commercial property to residential without my knowledge. Former Trustee Bill Templeton openly records all of their public meetings and gave me a copy of their three-hour CD for my legal counsel. Continue reading