MSSNY eNews: June 28, 2019 – Surprise Bills Go National

Arthur Fougner MSSNY Presiident

Arthur Fougner, MD
MSSNY President

June 28, 2019

Vol. 22  Number 25




We’ve all seen Geico’s humorous “Surprising” ad campaign. Unanticipated or “Surprise Bills” are not so funny. This situation most often occurs when a patient seeks services from a participating physician or hospital but then requires services not covered by the patient’s insurance plan. Consequently, the patient receives a surprise bill, often a significant amount. Everyone agrees this issue is problematic. The real issue becomes how to deal with it. Caution: this may get wonky.

New York State took the lead on this issue with the nation’s first surprise bill law, Article 6 of Financial Services Law: Emergency Medical Services and Surprise Bills. Most importantly, this law removed the patient from this troubling billing situation, leaving the dispute now between payer and provider. The out of network provider bills the plan for the services. If the claim cannot be resolved, the plan pays “an amount the health care plan determines is reasonable for the health care services rendered, except for the insured’s copayment, coinsurance or deductible” and the dispute may now go for independent resolution much like baseball arbitration – the arbitrator decides which number – the physician’s charge or the plan’s proposed payment is more appropriate.  One of the factors utilized by independent resolution is the usual and customary charge for that service.


Let’s back up for some history. In 2009, a settlement was reached between then NY State Attorney General Andrew Cuomo and UnitedHealth Group over using Ingenix, a wholly-owned subsidiary of United, as the resource for “usual, customary, and reasonable” pay rates. This settlement established FAIR Health. For NY, FAIR Health is now the resource for UCR.

NY’s law works. No, make that NY’s law works well. Arbitration decisions have gone 50 – 50. Surprise Bill complaints have dwindled down to a trickle. So NY’s law should be the model for the nation, right? Well … not so fast. Congress is now dealing with this issue as well other vexing pricing problems. Because of this, the insurers are now getting another bite at this apple. Proposed legislation would similarly remove the patient from any dispute but would establish the In Network payment as the standard. This is troubling for several reasons not the least of which is that that rate most commonly is felt to be a “low ball” payment. For this reason, many specialty care physicians had chosen not to participate with the plan in the first place.  Perhaps even more often, health insurers chose to not contract with these physicians because they were trying to limit their networks.  Heck, if this were going to be the case, why do the plans fight so bitterly against “any willing provider” clauses and insist on narrowing networks?

Why would Congress choose to reward the health insurance industry for this abusive behavior?

Proposed Solution

Another proposed solution is an All Payer Database. (I warned you this would get wonky.) Turns out the APD often excludes information about many employer-provided ERISA plans which tend to be the highest payers and are therefore more heavily weighted toward lower payers such as Medicaid. Perhaps we should call them Some Payer Databases. NY uses FAIR Health. The nation should do the same.

This issue is important because it involves all physicians – employed and independent, in-network and out-of-network. Employed physicians depend on the success of independent doctors the same as in network doctors depend on the success of their out of network colleagues.  What is being debated ultimately becomes a ceiling and the insurers know this. They are mobilizing all resources for this issue. We need to do the same. The wrong national law may undo much of what NY has successfully accomplished. You have received and will continue to receive MSSNY alerts on this issue. Please answer the call. We need all hands on deck. Please send a letter to your Representative, and Senators Schumer and Gillibrand here.


Arthur Fougner, MD
MSSNY President 

Comments?; @mssnytweet; @sonodoc99

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Physicians Urged to Contact Schumer, Gillibrand and Members of Congress to Oppose Disastrous Surprise Medical Bill Legislation

All physicians are urged to contact Senators Schumer and Gillibrand, as well as their respective US Representative, to oppose disastrous legislation that would mandate out of network payment at insurer determined in-network levels, and in support of legislation to align with New York’s approach to surprise medical bills.  A letter can be sent from here.

This week the Senate Health, Education, Labor and Pensions (HELP) Committee advanced by a 20-3 vote S. 1895, the Lower Health Care Costs Act.  The surprise billing provisions of the bill are problematic because they would tie out-of-network payments to average in-network rates in situations where a patient did not have the opportunity to choose an in-network provision.  It also omits the independent payment arbitration process that has been supported by the AMA and state medical associations, and has been a successful model for New York.  Senator Dr. William Cassidy (R-LA) made strong comments against the surprise billing section in S.1895, noting that is it skewed heavily in favor of insurance companies.  He warned that letting insurance companies set rates will have dire consequence for rural and critical access hospitals that are already closing due to inadequate payments and it will exacerbate health care market consolidation problems.  Senators Hassan, Romney and Murkowski were also outspoken, expressing concerns with the contracted in-network rate benchmark and speaking in favor of including of an independent dispute resolution mechanism.

Separately, Congressman Ruiz, MD (D-CA) and a significant number of cosponsors from both sides of the aisle, including Representatives Morelle (D-Rochester), Stefanik (R-North Country) and Clarke (D-Brooklyn) from New York, introduced surprise billing legislation in the House that is based on New York model’s.

MSSNY has been working closely with other state medical associations, national specialty association, the Physicians Advocacy Institute and the AMA to oppose the health insurance industry gift that is S.1895, and to instead support legislation that aligns with New York’s approach.  MSSNY’s letter to Senators Alexander and Murray expressing strong concerns with S.1895 can be found here.

Physician Action Needed – Urge Governor Cuomo to Veto Liability Expansion Bills
Physicians are urged to contact the Governor to urge that he veto 2 bills passed at the end of the Legislative Session over the objections of many groups that could have the effect of driving up liability costs and creating an even more toxic malpractice adjudication system. Please take a minute to go to and send a letter to Governor Cuomo urging him to veto these two bills and instead act to help bring down these costs through comprehensive reform.

S.6081/A.2372 will add costs to the system by requiring non-settling co-defendants in a tort action to choose whether to reduce their liability exposure by the stated settlement amount of a co-defendant or the settling co-defendant’s allocated percentage of fault prior to the first opening statement of the trial.  It would force these defendants into making a “blind gamble” and would enable in many cases the total payout to a plaintiff to actual exceed a jury’s award. There is little justification to this proposal other than increasing lawyer fees.

S.6552/A.2373 will also add new costs to the system, again with little justification. The bill would allow plaintiffs to collect a judgment from a third party that is not a direct party to the lawsuit in question. The bill would permit this to occur even though the plaintiff had not sued or perhaps could not have sued the third-party defendant in the first instance.

These bills have also been opposed by hospital associations and the insurance industry.

These bills would exacerbate an already onerous system. New York was recently granted the dubious distinction of having by far and away the highest cumulative medical liability payouts in the country. Of course, this is not the first time that our state has been “honored” with this distinction. In New York we pay out nearly two times as much as in the state with the next highest amount. We also pay out the highest amount per capita.

Yet instead of trying to address this problem, these two bills would make this problem even worse.

It is imperative that the Governor and legislators take action to ensure that physicians and hospitals remain available to deliver the quality and timely care our patients expect and deserve to receive. A critical element to this is acting to reduce the choking costs of medical liability insurance and stopping one-sided proposals that will undoubtedly raise these costs. We urge the Governor to work towards comprehensive reform to enable a comprehensive supply of physicians across New York, rather than enabling cynical attempts to increase lawyer fees at the expense of patient care.



Two NY Healthcare Groups Lose EHR Access Following Ransomware Attacks
Both Olean (N.Y.) Medical Group and Seneca Nation Health System in Salamanca, N.Y., have lost access to their computer and EHR systems following recent cyberattacks on the organizations, Olean Times Herald reports.

OMG, which serves around 40,000 patients, said that no patient records or information were compromised as a result of the ransomware attack, according to the publication. The medical group has been completing patient charting by paper since the organization’s computer systems and EHR were infected with the ransomware June 11, OMG CEO Christine Strade told Becker’s Hospital Review.

The hacker demanded “a significant amount of money,” in exchange for access to the systems’ files, which OMG did pay, Ms. Strade confirmed. The group is working to restore all the encrypted files.

Seneca, which is not affiliated with OMG, also maintained security of patients’ protected health information following the attack on its health system, according to a statement from Mark Halftown, acting CEO, published to the health system’s website. He added that while access to patients’ electronic charts and the hospital’s scheduling system is currently down, Seneca is still seeing patients.

“We are working feverishly to rebuild our system and we apologize for any inconvenience,” Mr. Halftown wrote.

OMG hired Kivu, a cybersecurity forensic group, to investigate the attack, according to the report. After its review, the forensic group determined numerous attacks, which mostly came from Eastern Europe and Africa, against OMG had been stopped by the medical group’s security system prior to the breach.

It is not clear whether the ransomware attacks on both organizations originated from the same hacker. (Becker’s Hospital Review June 20)

Opioid Prescriptions Tied to Higher Overdose Risk among Family Members
People whose family members have opioid prescriptions face increased risk for opioid overdose themselves, according to a case-control study in JAMA Internal Medicine.

Using claims data from 2004 to 2015, researchers matched roughly 2300 people with opioid overdose to 9200 controls without overdose. Having a family member with a prior opioid prescription was associated with nearly triple the odds of overdose. Additionally, the overdose odds increased when more opioids were prescribed. Children aged 0 to 12 years had a fourfold increase in overdose risk when a family member had a prescription, but risk was increased across most age groups.

The authors conclude: “Interventions may focus on opioid dispensing limits, encouraging patients to properly dispose of prescription opioids after use, enhancing patient and public education, and using secure medication storage boxes to limit the risk of opioid overdose among other household family members. Treating and preventing opioid overdose events at the family level, as well as expanding access to opioid antagonists, should also be considered.”

JAMA Internal Medicine article; Background: Physician’s First Watch coverage of parental opioid use and suicide attempts among offspring



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Lawsuit Filed in North Dakota Claims State Law Forces Physicians to Lie
The AP (6/25) reports a federal lawsuit filed by the only abortion clinic in North Dakota claims state law “forces doctors to lie, including one measure passed this year requiring physicians to tell women that they may reverse a so-called medication abortion if they have second thoughts.” The suit was filed by “the Center for Reproductive Rights on behalf of the Red River Women’s Clinic and the American Medical Association” and “also targets an existing law requiring doctors to tell patients that abortion terminates ‘the life of a whole, separate, unique, living human being.’” The suit “asks a judge to block enforcement.” AMA President Patrice A. Harris, M.D., told the AP, “The AMA will step in when there is any interference with our ability to talk to our patients about legal, evidence-based medical procedures.” Dr. Harris also “said AMA lawyers are monitoring abortion laws in all states and decided North Dakota’s was the next case to be ‘actively involved in.’”

For more information on this lawsuit, see the AMA’s press release

Vaccine Panel Downgrades Pneumonia Shot Recommendation for Seniors
The AP (6/26) reports the Advisory Committee on Immunization Practices “said routine vaccination with Pfizer’s Prevnar 13 [pneumococcal vaccine] shot was no longer necessary for all healthy people 65 and older.” The panel’s recommendation will likely be adopted by the Centers for Disease Control and Prevention. Vaccine injury claims are rare, federal data show

Research Offers Clue to Lyme Arthritis Found in Patients’ Inflamed Joints
“A small but significant number of people with Lyme disease continue to suffer from symptoms long after finishing an antibiotic treatment,” and “the mystery of why may have come closer to being solved with a study…that found that bits of the Lyme bacteria can persist in patients’ inflamed joints even after taking antibiotics.” Investigators “examining synovial fluid from those inflamed joints also found antibodies to the persisting molecules, called peptidoglycans, that come from the outer covering of the Lyme bacteria, according to the study.” The findings were published in the Proceedings of the National Academy of Sciences.


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Upper East Side Medical Office Space for Rent Part–Time
Beautiful, newly renovated medical office on the Upper East Side between Lexington and Park Ave. Full service building with 2 entrances, conveniently located near all public transportation. Office includes 2 consult rooms, 3 exam rooms, treatment area, 2 bathrooms, kitchenette and reception area with waiting room. The office is available on a part-time basis. Please call 212-288-2278 or e-mail for further information.
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Park Avenue Office Share-3 Days Per Week
Tasteful, bright, well-maintained medical office in prestigious building on Park Avenue at 94th Street.  Large waiting room and reception area, consultation room and 2 exam rooms available 3 days per week. Room for an
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Medical Office Space for Rent!
Beautiful Newly Renovated Medical Office on the Upper East Side between Madison and Park Avenue! Conveniently located near all public transportation and Mount Sinai Hospital. Consult and Exam room available for rent part time or full time (see pictures). Please call 212-860-0300 or email for further information.
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Fully Renovated Office Space for Part-Time Lease in Hauppauge
Available Tuesdays/Fridays, $450 half session, $750 full session. Elegant office space, beautiful waiting room with new stone and granite reception desk, custom molding, large windows, abundant natural light, TV, and refreshment counter.  Four new exam rooms and dictation room.  New stainless and granite kitchenette.  State-of-the-art network infrastructure meets HIPPA & PCI DSS compliance standards.  Digital X-ray room with PACS in each exam room available as an option.  Located in close proximity to LIE, Northern State Pkwy, and Vets Memorial Hwy. Contact us at (631) 486-8855;  Please see our listing

Office Rental 30 Central Park South
Two fully equipped exam, two certified operating, bathrooms and consultation room.  Shared secretarial and waiting rooms. Elegantly decorated, central a/c, hardwood floors. Next to Park Lane and Plaza hotels. $1250 for four days a month.Available full or part-time.


Rare Find — Great Office Share
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Great Career Opportunities for Clinical Physicians
The NYS Department of Corrections and Community Supervision has great career opportunities for Clinical Physicians. You must have possession of a license and current registration to practice medicine in New York State, and have two years of post-licensure medical experience.

Starting salary is $143,381 – $171,631 *(Additional $10,000 or $20,000). Benefits include comprehensive health insurance, NYS retirement system, deferred compensation plan, flexible spending plan, and paid time off.

We have openings in the following counties offering a choice of urban, suburban or rural living:

Clinton*                  Clinton Correctional Facility (sporting and recreational outlets)
Dutchess                 Fishkill and Green Haven Correctional Facilities (Hudson River Valley Beauty)
Franklin*                 Franklin and Upstate Correctional Facility (North Country, 1 hour to Montreal)
Greene*                  Greene Correctional Facility (rural charm yet only 2 hours to New York City)
Oneida                    Mohawk Correctional Facility (Cooperstown, breweries)
Sullivan                   Woodbourne Correctional Facility (mountains, outlets, casinos and entertainment)
Seneca*                  Five Points Correctional Facility (heart of wine country)
St. Lawrence           Riverview Correctional Facility (hiking, boating and museums)
Washington             Great Meadow Correctional Facility (Between Vermont & the Green Mountains)
Westchester            Bedford Hills Correctional Facility (Less than 1 Hour to NYC)

Contact: or DOCCS Personnel Office at (518) 457-8132 for more information and to apply.

Nurse, RN Utilization Review Full-Time-Westbury, NY (In-office position only)
Excellent opportunity for a RN who is seeking a position performing utilization review.  We require 1-2 years recent experience in hospital and/or insurer utilization review and experience using Interqual criteria and/or MCG Guidelines. Data entry/PC skills a plus. Benefits include 401(k), paid vacation and holidays. Send resume and salary requirements to: Empire State Medical Scientific and Educational Foundation, Inc. Human Resource Department e-mail:  Fax: (1-516) 833-4760 Equal Oppty Employer M/F