Looking forward – July 2019

David B. Hoyt, MD, FACS

Unanticipated medical bills vex both surgeons and their patients and create unnecessary tension in the patient-physician relationship. Resolving this complex challenge will require a holistic approach consisting of coordinated efforts by health insurance plans, hospitals, health care professionals, and patients.

Members of Congress have heard from their constituents about the burdens unanticipated medical bills create and are taking action. The American College of Surgeons (ACS) has been playing an important role in educating legislators about the causes and effects of surprise medical bills.

Why are these bills piling up?

Too often, despite their diligence in seeking health care from physicians and other providers who participate in their health plans’ network, patients learn after the fact that they received care from one or more providers who are out of network. Frequently these situations arise when patients have limited or no control over where or from whom they received care; for example, when they are rushed to a trauma center after a motor vehicle crash.

In other cases, out-of-network providers may be asked to provide services during an episode of care. Surgeons and other health care professionals may have limited ability to help patients avoid the unanticipated cost of adding these team members because they are neither able to accurately predict that the services these individuals provide will be needed nor to determine the other providers’ contract status with specific insurance plans.

The ACS perspective

ACS Fellows, staff, and leaders have met with members of Congress and congressional staff to discuss this issue and to offer solutions. Unanticipated medical billing was a key topic addressed in Capitol Hill visits during the Leadership & Advocacy Summit this spring, and on May 16, the ACS hosted a congressional staff briefing on Capitol Hill on the issue. Patrick V. Bailey, MD, MLS, FACS, ACS Medical Director for Advocacy, moderated the event, which more than 80 congressional staff attended. In all settings, the College has advocated for the following principles.

Insurer accountability

Insurers should be required to regularly and accurately update their provider directories, so patients can readily locate in-network health care professionals.

In addition, insurers should be required to meet minimum standards of network adequacy, meaning they should have an adequate mix of general surgeons, medical and surgical specialists, emergency physicians, and hospital-based physicians who are accessible to the patient populations they serve. Health plans often rely on narrow networks of providers to manage costs. Unfortunately, these health care networks are frequently deficient. Federal and state governments should provide strong oversight and enforcement of network adequacy.

Patient protections

The College has proposed that patients who receive surprise medical bills should be responsible only for their in-network cost-sharing amounts. Furthermore, patients should be precluded from insurer-physician payment negotiations. Placing patients in the middle of these disputes threatens the trust they have placed in their physicians.

Fair benchmarking of payments

Guidelines used for payment should reflect actual charge data for the same services, in the same geographic area, performed by a qualified health care professional and should be sourced from a statistically significant, wholly independent benchmarking database maintained by a not-for-profit organization. Medicare rates are inadequate for this purpose because they are based on budgetary constraints and policy agendas rather than market forces, and when reimbursement is based on in-network rates, the need for insurers to engage in meaningful negotiations is eliminated by default.

Equity in negotiating power

As I noted in this column in May, physicians are frequently placed in positions of diminished negotiating strength because of collective bargaining, or antitrust, legal restrictions. To create more equity in negotiating power, Congress should remove barriers that limit the ability of physicians to jointly negotiate contracts.

Arbitration for payment disputes

New York State has enacted a law that calls for independent arbitration of cases in which the payment that an insurer offers is disputed because of the complexity of the patient’s medical condition, special expertise was required to treat the patient, or other extenuating circumstances were involved.

Congressional proposals

In addition to establishing an alternative dispute resolution system, the New York law incorporates other elements that the College supports, including comprehensive patient protections, mandates that insurers maintain adequate networks of physicians and specialists, and reasonable benchmarks. This legislation seems to be working to the satisfaction of all stakeholders and has successfully protected many patients from large, unanticipated medical bills. The ACS has encouraged members of Congress to use the New York model to draft federal legislation.

At press time, several U.S. senators and representatives had released proposed legislation pertaining to unanticipated billing. The College has reviewed the plans and has determined that the Senate proposal would do little to address the problems that surgeons and our patients are facing, whereas one of the House proposals closely adheres to our recommendations.

More specifically, Sen. Bill Cassidy, MD (R-LA), and other members of the Senate Bipartisan Working Group recently introduced the Stop Surprise Medical Bills Act, S. 1531, which heavily favors the health insurance industry. A significant drawback to this legislation is that it would require health plans to pay out-of-network physicians the median in-network rate. Physicians may then take their case to arbitration if they believe the payment should be higher. The College’s major concern is that a health plan could reduce payment to any in-network physician who is paid more than the median rate, leaving that physician with a choice of either being paid a lower amount or going out of network to fight for a higher rate in arbitration. Similar legislation has been drafted in the House Committee on Energy and Commerce.

Reps. Raul Ruiz, MD (D-CA); Phil Roe, MD (R-TN); Joseph Morelle (D-NY); Van Taylor (R-TX); Ami Bera, MD (D-CA); Larry Bucshon, MD, FACS (R-IN); Donna Shalala (D-FL); and Brad Wenstrup (R-OH) released an outline of the bipartisan Protecting People from Surprise Medical Bills Act. This legislative framework is modeled on New York’s law and includes a fair, independent dispute resolution process. The bill also calls for more accurate provider directories, greater transparency for patients seeking to select health care professionals who are in their existing network, and a study to examine the narrowing of networks. This proposal strikes a careful balance, allowing physicians and insurers to negotiate a final payment while protecting patients from unanticipated medical bills. The ACS supports this framework and looks forward to working with the bill’s sponsors as they finalize legislative language.

The College’s leadership agrees that unanticipated medical billing is an issue that requires immediate attention and action. I encourage each of you to learn more about this complex issue on the ACS website and to meet with your elected officials while they are in their district offices over the Independence Day recess, June 29−July 7, and during the summer work period, August 3−September 8.


If you have comments or suggestions about this or other issues, please send them to Dr. Hoyt at lookingforward@facs.org.

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