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.

Do You Really Want A Unique Patient ID?

The House just passed a bill that eliminates the prohibition on the use of federal funding to assign all Americans a unique medical identifier. Former Congressman Ron Paul, M.D., got that prohibition enacted in 1998.

            The identifier is supposed to improve “efficiency”—of what? Government surveillance of all Americans? The agenda of government-favored special interests, who might want to silence persons with political views they don’t like? Persons who might see you as a threat to their success in business, academia, or other ventures?

            What might be in your record? A prescription for Valium or other drug prescribed during a distressing life crisis? This could be a psychiatric “red flag” causing denial of your gun rights. A diagnosis of a sexually transmitted disease? An admission that you had a temper tantrum or used an illegal drug at a party? Could this derail a job application or cause you to lose child custody or foreclose a political career?

            Can you be honest with your doctor if anything in the record might someday be used against you?

            “Make no mistake. The [patient identifier] would be the end of privacy and the foundation of a national health data system,” warns Twila Brase, president of the Citizens’ Council for Health Freedom and author of Big Brother in the Exam Room.

            The damaging information in the record might not even be yours. A hurried data-entry person might have clicked the wrong item on a drop-down menu or even cut-and-pasted something from another patient’s electronic health record.

            The prohibition on funding for the unique identifier needs to be restored, states the Association of American Physicians and Surgeons (AAPS).

Further information:

       

10 Reasons to ‘Refuse to Enroll’ in Obamacare

From our friends at Citizen’s Council for Health Freedom:

OPEN ENROLLMENT 2018: 10 Reasons to ‘Refuse to Enroll’ in Obamacare

‘Command and Control,’ ‘Claw Backs,’ ‘Narrow Networks’ and More Are Reasons to Stay Out of an Expensive, Privacy-Compromising Gov’t Plan.

Just a few days remain in the open enrollment period for the Affordable Care Act (ACA), and for those still on the fence, Citizens’ Council for Health Freedom (CCHF) is sharing the top 10 reasons to “Refuse to Enroll.”

“For more than eight years, the Affordable Care Act has been changing America’s health care landscape—and not for the better,” said CCHF president and co-founder Twila Brase. “Costs have skyrocketed because younger, healthier Americans wisely chose not to enroll, unlike the Obamacare architects thought they would. Health plans that were already making money hand over fist received bailouts for insuring older, sicker individuals, some with uninsurable conditions. With a new administration that’s making bold steps against the ACA way of doing health care, there are many reasons not to enroll in a flawed government system that compromises care, ties doctors’ hands and shares our private medical information.”

CCHF’s “10 Reasons Not to Enroll in Obamacare” include the following:

  1. Obamacarecoverage is a government program; not private insurance.
  2. It’s “a second Medicaid-style program,” said former CBO director Douglas Holtz-Eakin.
  3. The Affordable Care Act (ACA) exchanges facilitate redistribution of American’s wages, reported Fox News in 2010, just days after the law was signed.
  4. User fees added to premiums fund operations of these ‘command and control’ exchanges, according to an “Overview of Health Insurance Exchanges” from the Congressional Research Service.
  5. ACA exchanges may automatically enroll you in Medicaid, such as this story in Minnesota.
  6. If you underestimate your income, the IRS can ‘claw back’ premium subsidies you received.
  7. Your choices are limited, as a result of “narrow networks” of doctors and hospitals.
  8. Federal law and most states no longer penalize you for refusing to buy insurance.
  9. Health care sharing is a more affordable, cash-based option for coverage.
  10. The federal exchange database (“Health Insurance Exchange Program” System of Records) collects, stores and shares private information from all enrollees.

For many years, CCHF has also shared a list of wise—and legal—alternatives to signing up for costly government coverage:

  1. Buy private insurance outside the government exchanges, such as a private policy, employer-sponsored coverage or a private insurance exchange.
  2. Claim one of several general exemptions to the mandate or one of its many hardship exemptions. The Trump administration added several hardship exemptions in April, including one related to abortion, and also announced earlier this month that documentation is not required for those who take these exemptions.
  3. Become a member of a health care sharing ministry, a viable, affordable option for some families that is skyrocketing in enrollment—and the second of the nine general exemptions.

“Americans also need to understand that although the mandate and penalty are gone in a practical sense, they are technically still in place,” said Brase. “While Congress zeroed out the penalty tax starting in 2019, Congress did not repeal the ACA mandate to be insured or the penalty itself. It only zeroed out the penalty for going uninsured. The language for the mandate and the penalty are still in law, but the cost of the penalty is now zero dollars. While this provides welcome relief to many, a future Congress could turn around and easily reinstate the penalty for being uninsured because the penalty language is still in law. They could simply go from zero to whatever penalty they wish to impose for going uninsured.”

Americans should also know that the individual penalty was zeroed out beginning in 2019, so those who went without coverage in 2018 may be still on the hook for penalties—and may still be able to claim exemptions to avoid those penalties.

For more information about CCHF, visit www.cchfreedom.org, its Facebook page or its Twitter feed @CCHFreedom. Also view the media page for CCHF here. For more about CCHF’s initiative The Wedge of Health Freedom, visitwww.JointheWedge.comThe Wedge Facebook page or follow The Wedge on Twitter @wedgeoffreedom.

Opting-out of Medicare seems like a better idea every day – for doctors and patients

Twila Brase, President of Citizen’s For Health Freedom writes in:

I’m doing a little “light reading.” See page 193 – 198 of the 2016 Medicare Trustee’s Report:

https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/ReportsTrustFunds/Downloads/TR2016.pdf

Two quotes:

By the end of the long-range projection period, payment rates for affected providers would be about 57 percent lower than their level in the absence of these reductions. Currently, the Medicare payment rates for inpatient hospital services have declined to about 61 percent of those paid by private health insurance.97 …

It is conceivable that health care providers could improve their productivity, reduce wasteful expenditures, and take other steps to keep their cost growth within the bounds imposed by the Medicare price limitations. For such efforts to be successful in the long range, however, providers would have to generate and sustain unprecedented levels of productivity gains—a very challenging and uncertain prospect.

Opting-out of Medicare seems like a better idea every day – for doctors and patients. 

If you’re a cash-based third-party-free practice, I invite you to join CCHF’s new “Wedge of Health Freedom,” an identified free-trade zone in the U.S. and an online site for patients and doctors to join together to break free.
 
See videos of Dr. Brenda Arnett and Dr. Alieta Eck talking at our launch in D.C. www.JointheWedge.com

Twila Brase RN, PHN
President and Co-founder
Citizens’ Council for Health Freedom (CCHF)
161 St. Anthony Ave, Ste. 923, Saint Paul, MN 55103