Los Angeles Times
July 12, 2016
Ending the scourge of surprise medical bills
By The Times Editorial Board
California lawmakers have been trying for more than a decade to protect hospital patients from being hit with huge bills from doctors who aren't part of their health insurer's network. They have another opportunity to do so this year, and they should seize it.
The problem arises when patients go to an in-network hospital or clinic to be treated by an in-network surgeon or other physician, but wind up receiving care (often without their knowledge) from an anesthesiologist, pathologist, radiologist or other specialist who's not in the network. A nasty surprise arrives weeks later, when the out-of-network specialists bill them for the portion of their fee that the insurer wouldn't cover — an amount that can be in the thousands of dollars. According to a survey by the Kaiser Family Foundation, 70% of the patients struggling to pay out-of-network doctors had not known they were going to be treated by someone who didn't accept their insurance.
Physicians' trade groups insist that they don't like surprise medical bills either. The challenge has been figuring out how to create a system that encourages insurers, hospitals and doctors to avoid these situations while still providing a fair payment to the out-of-network physicians who provide treatment.
Congress provided a measure of help in the Affordable Care Act for patients receiving emergency care from out-of-network doctors by requiring insurers to cover the same percentage of the costs as they would have if the doctors had been in network. California law goes further, barring out-of-network doctors who deliver emergency care from billing patients for the amount the insurer doesn't cover. But that still leaves patients vulnerable for non-emergency care.
Having hospitals and clinics make sure that each patient is treated only by specialists in the patient's provider network would be one way to end surprise bills, but it would require them to manage doctors more directly than they do today. And there's no guarantee today that the necessary specialists would be available in a patient's network.
Assemblyman Rob Bonta (D-Alameda) and a bipartisan group of cosponsors have taken a more pragmatic approach. Their bill, AB 72, would require out-of-network doctors to obtain a patient's permission at least a day before providing non-emergency treatment at an in-network hospital or clinic. If the patient doesn't voluntarily agree to be treated by a specific out-of-network doctor and pay the extra charges, he or she couldn't be billed for more than an in-network provider would have cost — even if out-of-network doctors are brought in. Any participating out-of-network doctor, meanwhile, would have to accept the average amount paid to in-network doctors or go to arbitration with the insurer.
The risk here is that too many of the physicians that don't want to join insurance networks will simply refuse to see patients who won't pay their full rate. The bill takes a reasonable approach to the core problem, which is the fact that patients are being hit with huge bills they hadn't anticipated and had no say in. Lawmakers still have to iron out some details, however, to make sure the system works fairly for everyone. For example, the bill needs to give insurers an incentive to bring into their networks a full complement of specialists at every in-network hospital, rather than counting on out-of-network doctors being willing to treat patients at a discount.
There will always be tension between what insurers want to pay and what providers want to be paid for their services, especially in regions where one or the other faces limited competition. So there will inevitably be fights over how much a provider's service is worth to an insurer, and vice versa. But there's no reason patients should be caught by surprise in the middle of that fight.
Comment by Don McCanne
There are many injustices inherent in our dysfunctional, fragmented system of financing health care, and surprise medical bills from out-of-network physicians is one of them. Patients who have health insurance should not have to face these bills that otherwise would have been covered by their insurance. So what is the solution?
First we have to understand the problem. Surprise medical bills pop up because the insurer has not contracted with all of the members of the team that provides care for the patient. In-network physicians have their fees set by the contract they have signed with the insurer. Out-of-network physicians have no such contract and thus feel free to set their own fees.
The patient has selected an insurance plan - a contract - which provides coverage for in-network physicians. Some plans may provide partial coverage for out-of-network physicians but usually only at rates that are even lower than in-network physicians would be paid. Because the insurer has no contract with the out-of-network physician, the patient must pay not only the difference between the contracted rate and the lower out-of-network rate but also must pay the entire balance of the full fee charged by the out-of-network physician.
Various legislative solutions have been considered to protect the patient from these charges that most consider to be unfair when the patients have fulfilled their responsibility of obtaining adequate insurance coverage. Some have suggested that the insurers should be required to pay the full fee of the out-of-network physician. But then why would any physician sign a contract with the insurer if by remaining out-of-network they can receive their full list fee instead of the discounted contract fee? That would destroy the concept behind the contracted physician networks and result in intolerable fee inflation.
Most legislative solutions then turn to the physicians to demand that they accept the fee determined by the insurer even though no contract exists with these out-of-network physicians. In this instance, why would the insurer make an effort to be sure that they have a full complement of physicians available so that patients would not be inadvertently provided care by an out-of-network physician. Under such a requirement, if the insurer establishes only a narrow network of physicians then they could limit payments to the level of their contracted rates for all other out-of-network physicians without contracts. This gives private insurers the right to set rates outside of their plans, even if unreasonably low - hardly a free market solution.
So who is to blame? The patient for not selecting a plan that contracts with all physicians that might be needed in the future, even if that is impossible to know? The physician who the insurer has not included in their deliberately restricted networks? The insurer who has created restricted networks to control fees at the cost of limiting coverage for often unavoidable services provided by out-of-network physicians?
By now it should be obvious that the real problem is with the defective design of our dysfunctional health care financing infrastructure. Solutions should be directed at correcting the defects in the infrastructure.
In a single payer system that prohibits private insurance coverage for benefits provided by the public system, essentially all physicians are covered - the equivalent of all physicians being "in-network." Fees are fair since they are publicly administered, paying enough to support the system and provide fair margins, yet not paying so much that it would be an excessive burden on the taxpayers who finance the system. An ideal single payer system provides first dollar coverage for all essential benefits, thus the patient is not exposed to surprise bills, whether in- or out-of-network, nor to deductibles and coinsurance which can be unaffordable under our current financing system.
Private insurers are providing us services that we do not want: costly, excessive administrative services that serve the insurers rather than the patients, excessive patient cost-sharing that can make health care access unaffordable, and narrow provider networks that take health care choices away from patients. Instead of narrowly confining their considerations to surprise bills, our legislators should get to the root of the problem and eliminate the private insurer intermediaries who are screwing up the system.
It is long past time to enact a just system that works: a single payer national program, aka an improved Medicare for all.