MSSNY eNews: July 12, 2019 – Oppose Disastrous Surprise Med Bill Now

PRESIDENT’S MESSAGE Arthur Fougner, MD MSSNY President MSSNY eNews July 12, 2019 Vol. 22  Number 26

 

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Colleagues:

Congress, Don’t Harm Patients With The Wrong Surprise Medical Bills Solution
by Dustin Corcoran and Phil Schuh

Dustin Corcoran is chief executive officer of the California Medical Association, and Phil Schuh, CPA, is executive vice president and chief financial officer of the Medical Society of the State of New York.

Former Supreme Court Justice Louis Brandeis said in the early 1930s that states are laboratories of democracy that can experiment with various policies without harming the rest of the country. Now that more than 10 states have enacted laws to end surprise medical bills, Congress is discussing various policies that work toward the same goal.

Everyone agrees patients need to be held harmless from surprise medical bills to prevent financial hardship. What hasn’t been resolved is how the anticipated federal law will direct insurers and physicians to resolve billing disputes and enter into fair contracts. As Congress continues to consider this question, the experiences of California and New York offer important lessons that can ensure patients don’t inadvertently lose access to essential medical services in an emergency as they gain important new financial protections from surprise bills.

California’s law instituted a government-mandated benchmark to resolve disputes, championed by the health insurance industry. Instead of promoting fairness, the benchmark has become an artificial ceiling.

It fails to consider the actual cost of medical services and has emboldened insurers to avoid entering into contracts with doctors, meaning even more physicians will remain outside of insurers’ networks. Experience has shown this creates a huge hardship for patients and is precisely what surprise medical bills legislation is supposed to solve.

With more doctors forced out of network, patients will encounter more difficulty finding an in-network doctor. When they seek care out of network, it will substantially increase their deductibles and out-of-pocket costs.

Importantly, fewer hospital-based physicians, such as surgeons, obstetricians and anesthesiologists, will be able to serve patients in emergencies, a direct result of empowering insurance companies to decide how disputes should be settled. It’s not an exaggeration to assume that California’s approach will eventually destroy access to emergency and “on-call” safety net physicians.

The difference between life and death in some emergencies is a matter of minutes. Patients need to know that the right physician specialist will be there to treat them.

Contrast this cautionary tale with the overwhelmingly positive results attributed to New York’s surprise medical bills law. It should be the basis for federal legislation because consumers are no longer financially responsible for payment; complaints have plummeted; premiums have grown more slowly in New York than the rest of the country; physicians’ out-of-network charges are down 13 percent; and out-of-network billing is down 34 percent, according to a recent Georgetown University analysis. In other words, New York has prevented the serious problems that arise in a marketplace, like California’s, that’s unduly dominated by insurers.

Most importantly, the New York law ensures patients can continue to see the doctors they need in an emergency because arbitration is deterring disputes from ever reaching that point. When they do, outcomes are grounded in fair, transparent and independent data, in stark contrast to California’s arbitrary, insurer-championed approach that’s adding to the ranks of out-of-network doctors and diminishing access to essential emergency physicians.

As Congress continues to debate federal legislation to end surprise medical bills, the approach it ultimately adopts to resolve insurer-physician disputes could be the difference between a health care system where insurance coverage includes an adequate number of in-network physicians to protect patients and a system that empowers even bigger, more powerful insurance companies to encourage health care consolidation that decreases access to doctors and raises prices.

As leaders of two of the nation’s largest medical societies, we know from experience that federal surprise medical bills legislation needs to look like New York’s law, which is why Congress should support the House of Representatives’ bipartisan Protecting Patients from Surprise Medical Bills Act introduced by Reps. Raul Ruiz, MD (D-Calif.), and Phil Roe, M.D. (R-Tenn.). The Senate Health, Education, Labor and Pensions Committee’s legislation, which uses the so-called “median in-network” rate, another government-mandated benchmark, is far too much like California’s law, which experience shows has been devastating for patients and physicians.

Arthur Fougner, MD
MSSNY President 

Comments? comments@mssny.org; @mssnytweet; @sonodoc99

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Physicians Urged to Contact Schumer, Gillibrand and Members of Congress to Oppose Disastrous Surprise Medical Bill Legislation
Please do not let the US Congress make it even harder for physicians to be able to negotiate fairly with market dominant health insurers, and force even more physicians into employment arrangements.   Physicians are urged to continue 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.

While these bills would protect New York’s law for state regulated health insurance products, it would establish this insurer determined default rate for plans governed by ERISA.

This week, the US Energy& Commerce Health Subcommittee reported to the full Committee legislation (HR 3630) that would tie out-of-network payments for surprise medical bills to an insurer determined in-network payment level.  Legislation (S.1895) with a similar “default rate” remedy for these surprise bills was also recently advanced from the US Senate Health, Education, Labor and Pensions (HELP) Committee.  Both bills ignore New York’s successful approach that resolves these disputes through a simplified independent dispute resolution system based upon “baseball arbitration” that includes consideration of regional charges for health care services.

MSSNY President Dr. Art Fougner issued a statement noting that “New York’s physicians are extremely concerned about the impact to patient care of a bill before the US House Energy& Commerce Health Subcommittee…that would further enable abusive health insurer practices by establishing an insurer determined “default rate” for surprise medical bills (HR 3630). New York’s physicians very much agree with the goal of the legislation to protect patients from facing these bills, but disagree strongly with the solution being offered by Rep. Frank Pallone and Rep. Greg Walden, Chair and Ranking Member of the E&C Committee…”

Instead, MSSNY has supported legislation (HR 3502) that had been introduced by Representative Raul Ruiz, MD (D-CA) and Representative Phil Roe, MD (R-TN) based on New York’s model that has the support of a number of New Yorkers, including Representatives Clarke (D-Brooklyn), Higgins (D-Buffalo), Lowey (D-Westchester), Maloney (D-Westchester), Morelle (D-Rochester), Rice (D-Long Island), Stefanik (R-North Country), Suozzi (D-Long Island) and Velasquez (D-NYC).  While this legislation has some drafting errors that need to be fixed, it most closely follows New York’s approach.

MSSNY has been working closely with other state medical associations, national specialty associations, the Physicians Advocacy Institute and the AMA to oppose the health insurance industry gift that is S.1895 and HR 3630, 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.

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Physician Action Needed on Bills Awaiting Governor’s Signature
While the legislative session may be over, there is still ample opportunity to influence the policy-making process. Many bills that passed both houses of the legislature have yet to be sent to the Governor for his signature or veto. Please take just a few minutes to send letters to the Governor from MSSNY’s Grassroots Action Center in support or opposition of the following issues:

• Mid-year formulary changes (MSSNY supports)– would prohibit a health insurer from removing a prescription drug from a formulary during the patient’s policy year. Moreover, if the plan’s drug formulary has two or more tiers of drug benefits with different deductibles, copayments or coinsurance, the plan may not move a drug to a tier with higher patient cost sharing during the policy year. It also prohibits the plan from adding new or additional formulary restrictions during the policy year. Please reach out to the governor and let him know how helpful this bill would be by clicking here. 

• Partial prescription fills (MSSNY supports) – would allow prescribers, in consultation with their patients, to prescribe up to a 30-day supply of a controlled substance with a notation to the pharmacist that they should only dispense the amount agreed to by patient and prescriber. Each partial fill would be dispensed and recorded in the same manner as a normal refill and the aggregate quantity dispensed across partial fillings may not exceed the overall total quantity prescribed. This measure would help to address patients’ pain control needs while also reducing the amount of leftover medication in households. Please encourage the governor to sign this legislation by clicking here. 

• Malpractice expansion (MSSNY opposes) – two bills passed the legislature that will further tip the scales in liability actions against physicians and others, adding costs and potentially increasing liability premiums while doing nothing to help reform our current broken system.

The first would require a non-settling co-defendant in a tort action, where another co-defendant has settled, to make a “blind gamble” prior to trial (instead of after) whether to reduce the overall jury determined amount by the settlement amount or the settling defendant’s equitable share, instead of after a jury verdict has been reached.

The other 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.

Please let the Governor know that these bills would unnecessary costs to an already broken system by clicking here.

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Hospital Association Urges Support for Bill to Repeal Medicaid DSH Cuts
Ahead of an important congressional hearing, the Greater New York Hospital Association is urging its members to express support for a bill that repeals impending Medicaid disproportionate share hospital cuts. The House Energy and Commerce Health Subcommittee will consider the bill. If approved, House leaders have said they would like the full chamber to vote on the bill before the end of the month.

MSSNY weighed in on surprise billing ahead of Thursday’s hearing.

“New York’s physicians very much agree with the goal of the legislation to protect patients from facing these bills but disagree strongly with the solution being offered by Rep. Frank Pallone and Rep. Greg Walden, chair and ranking member of the [Energy and Commerce Health Subcommittee],” said Dr. Art Fougner, president of the medical society, in a statement.

“Their proposal would greatly limit the ability of physicians to negotiate patient-care terms fairly with already market-dominant insurance companies. It would also make it much harder for hospitals to ensure needed on-call specialty care in their emergency departments. Moreover, it could have a particularly significant adverse impact on rural and smaller hospitals.

Kenneth Raske, president of the association, wrote in a letter to members Wednesday stating, “Eliminating Medicaid DSH cuts is GNYHA’s top federal priority, and we worked closely with Rep. Engel on getting this amendment included,” Raske wrote.

Safety-net hospitals that serve high numbers of low-income and uninsured patients operate on tight margins, Engel recently said of his efforts to repeal Medicaid DSH cuts. “If Medicaid DSH cuts were implemented, it would have a devastating impact on these critical facilities, potentially leading many to close their doors.” (Crains July 11)

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RFK Jr. and NY Families Sue State for Ending Religious Exemptions to Vaccines
Attorneys Michael Sussman and Robert F. Kennedy Jr. filed a lawsuit Wednesday in the New York State Supreme Court that questions the constitutionality of the vaccination exemption changes, which took effect on June 13. The challenge, filed on behalf of 55 New York families who had lawful religious exemptions, requests that the court “enjoin the enactment of the repeal temporarily, preliminarily and permanently.” Kennedy, chief legal counsel for Children’s Health Defense, argued that it’s “unconstitutional for the state to deprive people of such important rights when religious animus has played a key role.”

Sussman, an attorney with Goshen-based Sussman & Associates, further argued that “to deprive families of the rights to freedom of religious expression, parental rights and the right to either a public or private education, the state must demonstrate a ‘compelling state interest’ that the state has failed to prove here.” Under New York Department of Health guidance issued in response to the new law, children attending daycare or public, private or parochial school who had a religious exemption were required to receive the first age appropriate dose in each immunization series by June 28. Parents and guardians must show that they have scheduled appointments for all required follow-up doses by July 14 for their children to remain in school or daycare. (Politico, July 10)

Female Physicians Paid Less Than Males
Female primary care providers are paid an average of 25% less than their male counterparts in the United States, according to Medscape‘s Female Physician Compensation Report released last week. The report noted that, overall, male physicians were more likely than female physicians to say they felt fairly compensated.

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FCC Approves New Telehealth Pilot Program, Issues Proposed Rulemaking
The Federal Communications Commission voted unanimously to approve a notice of proposed rulemaking to establish a new $100 million “Connected Care Pilot Program” to support telehealth for low-income Americans, including veterans and those living in rural areas. “The future of health care is connected care, and this is the future that I want the FCC to support,” said FCC Chairman Ajit Pai.

The AHA has said the program is a critical next step toward delivering affordable telehealth services to those Americans who need it the most, and in September shared comments and recommendations with the FCC on its notice of inquiry about the program. Among other areas, FCC’s proposed rule seeks comments on who should participate in the pilot, including eligible health care providers and broadband service providers; the goals of the pilot; and the project application submission and evaluation. FCC will accept comments for 30 days after the rule is published in the Federal Register.

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Federal Judge Blocks Rule Mandating Drug Prices in TV Ads
A federal judge on Monday blocked a rule that would have required pharmaceutical companies to disclose the prices of their drugs in television ads, according to media reports.

The rule, set to go into effect on Jul. 9, would have mandated cost disclosure for any drug covered by Medicare or Medicaid that has a list price above $35 for a month’s supply or the usual course of treatment. In June, three drug companies filed a lawsuit against the regulation, and on Monday, Judge Amit P. Mehta ruled that the Department of Health and Human Services had “exceeded its regulatory authority” in requiring such disclosure, the New York Times reports.

For now, TV ads will stay as they are. An HHS spokesperson said that “the administration … was consulting with the Justice Department on what to do next,” according to the Times.  Physician’s First Watch coverage of lawsuit

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Doctors Without Borders Information Session in Queens
Every day, Doctors Without Borders/ Médecins Sans Frontières aid workers from around the world to provide assistance to people whose survival is threatened by violence, neglect, or catastrophe—treating those most in need regardless of political, religious, or economic interest. Whether an emergency involves armed conflicts or epidemics, malnutrition or natural disasters, Doctors Without Borders is committed to bringing quality medical care to people caught in crisis.

On Wednesday, July 31st, medical and non-medical professionals are invited to an evening presentation in Queens to learn more about joining Doctors Without Borders’ pool of dedicated aid workers. This is your opportunity to meet the recruitment team and learn about how you can join the pool of dedicated aid workers. The organization is currently recruiting for a variety of medical and non-medical positions.

Where:
Sunnyside Community Services
Seminar Room
43-31 39^th St.
Sunnyside, Queens 11104

When:
July 31^st, 2019, 7-8:30 pm

Register here.

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Primary Care First Seriously Ill Population Webinar: Scheduling Update
In an effort to share model details and to include Center for Medicare and Medicaid Innovation leadership, the upcoming webinar on the Primary Care First Seriously Ill Population (SIP) payment option will now be held at the following date and time:

Wednesday, July 24th at 12:00 PM EDT

We apologize for any inconvenience and appreciate your continued interest in Primary Care First. Webinar slides will be available for download on the Primary Care First webpage shortly after the event.

Please forward the registration link below to colleagues who may be interested in learning more about the Seriously Ill Population payment model option of Primary Care First.

Register to attend here.

If you registered for the event on July 10th, then you do not need to re-register for the event as the link you received is still valid.

For additional information about Primary Care First, please visit the model webpage here.

Questions or Feedback?

If you have questions or feedback, please email PrimaryCareApply@telligen.com.

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Thanks from Anti-Recreational Marijuana Group
The following letter of gratitude from Kevin Sabot, PhD, President of Smart Approaches to Marijuana (SAM), was sent to MSSNY’s Moe Auster thanking him for MSSNY’s support regarding our opposition to the legalization of recreational marijuana and convincing the legislature from legalizing recreational marijuana during this year’s legislative session.