CONGRESS SURPRISES HEALTHCARE PROVIDERS BY TRYING TO RAM THROUGH THE NO SURPRISES ACT.
Julio Gonzalez, M.D., J.D.
In a move reminiscent of the shenanigans employed in passing Obamacare, Congress is now attempting to pass another bill designed to fundamentally transform medicine. The No Surprises Act was published on Friday night after a series of backdoor deals led to handshakes between members of the House and the Senate that simultaneously kept medical providers squarely outside of the policymaking process.
The No Surprises Acti s designed to address a shortcoming of many insurers who fail to adequately provide coverage for their beneficiaries. Suppose your child develops intense abdominal pain, nausea, and vomiting in the middle of the night. You correctly suspect that she is suffering from appendicitis. Anxiously, you take her to the emergency room partly reassured that the expenses of the treatment are covered by your insurance.
Sure enough your child has an obstructed appendix and successfully undergoes an appendectomy. A few weeks later, you get the bill and, surprise(!), the insurer had not contracted with your anesthesiologist, and your anesthesiologist is now trying to collect reimbursement from you directly. You call the anesthesiologist's practice and tell it that you should not have to pay this bill because you are insured. The practice refers you to the insurance company who tells you that it will not pay the anesthesiologist because he is not a member of your plan. In frustration, you do what most Americans would do in this situation and through your i-phone at the wall; incurring another thousand dollar expense!
In reality, the overwhelming number of cases where this scenario plays out are resolved via one of many avenues. Either the insurance company or the patient come to an agreement with the provider, or the hospital enters into an agreement with the anesthesia group that would subsidize such situations. Rarely, resolution is not achieved, setting up an exceedingly frustrating, unfair situation for the patient and the physician alike, as well as multiple newspaper articles and calls to politicians.
On a policy level, the solutions, although often well meaning, are often onerous. Generally, the approach has been to protect the patient by forcing the physician and the insurer to work out an agreement. The problem comes when the insurer and the physician fail to come to terms. Under those circumstances, the government has deployed numerous ideas on a state level. For example, one is that the government will simply tell everyone what the physician should be paid. The problem with this approach is that unless the physician is paid his or her usual and customary charge as opposed to what he or she actually receives, such laws always favor the insurer because of the protection provided to the insurer. The reassurance from government that the insurer will never encounter a high bill for services it could have otherwise covered is an incentive to keep it from contracting physicians. Why would you contract more physician groups if the state is going to mandate the savings for you?
Another approach is to mandate arbitration between the physician and the insurer. Again, this approach generally favors the insurer in a number of more surreptitious ways. First, the insurance company has infinitely more resources with which to enter into arbitration than a small medical practice. Second, the arbiters will generally try to find some fair number and usually employs reimbursement schedules largely generated by the insurance company. Additionally, some solutions tilt the arbitration decidedly in favor of the insurer. And let's remember, the one who was up in the middle of the night taking the life of the patient in his or her hand was NOT the insurance company!!
The No Surprises Act is particularly onerous on numerous levels. First, it has a two-day turnaround time provision with which hardly any provider can comply. It limits a provider to four-claims per year (huh?). It asks for a study to evaluate the impact of such actions by January 1, 2023, and annually thereafter for four years. (By that time, if the effect of the Act was deleterious to small practices, it will be too late.) Amazingly, the bill specifically prohibits the arbiter from considering the physician's usual and customary charges, and only the physician's usual and customary charges! The arbiter may still consider any numbers provided to them by the insurer including arbitrarily created reimbursement ones such as Medicare and Medicaid reimbursement schedules and Workmen's Compensation rates.
Of course, most offensive is the fact that Congress would try to ram this bill down the throats of medical providers and their patients inclusive of its potentially wide ranging deleterious effects without an appropriate debate or due diligence on the matter.
The Center for Healthcare Policy Solutions is taking aim at this situation. Unfortunately, because of the lame-duck session in which Congress finds itself, the goal for right now is to have the No Surprises Act defeated in the Senate, as the Democratically controlled House of Representatives has already agreed to pass it behind the scenes. There are indications that the Senate has agreed to hear the bill, but no confirmation from Senator McConnell's office that it actually will. If the bill is pushed off to the next session, then the goal would be to employ a solution such as the New York surprise billing legislation based off 80% of the market's usual and customary charges, or arbitration language that imposes no restrictions on what could be considered by the arbiter. Either way, the issue of a surprise medical billing is too broadly impactful and too complicated to ram through Congress as a surprise to its constituents.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He served in the Florida House of Representatives. He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.
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Dr. Julio Gonzalez is an orthopedic surgeon living in Florida. He is a lawyer, author, and former member of the Florida House of Representatives. He is available for speaking engagements at email@example.com