Thread by @amychomd

Congress has been working for years to solve “surprise billing.”

I’ve been trying to explain this issue - and EMTALA for years now.

Congress hasn’t been able build consensus or pass a bill for years.

On Friday a deal was announced. At 5:45p, a 300 page bill released.

https://twitter.com/wendellpotter/status/1214590242667278336

It will be attached to a must-pass omnibus or COVId relief bill.

The 300 page bill was released on a Friday at 5:45p. The word from staffers is no changes will be entertained. Others say that and changes need to be done by EOD Monday. (So it can be included in a must-pass omnibus bill.)

No hearings. No public comment. No stakeholder review.

I am not sure what changed and why this is being pushed through without stakeholder input.

I know we all want to be done with it, but don’t we want to get it right?

Since Congress won’t be giving stakeholders any forum to voice concerns or any opportunity to give feedback, I guess we will have to use Twitter. Kind of ridiculous but I guess this is how DC works.

First, I’m really relieved that @WaysMeansCmte supported IDR as the mechanism.

The original proposals by Senate HELP (“benchmark” would have been absolutely disastrous for physicians with no stop. It would have completely disrupted negotiations between insurance companies and physicians.

highyieldscript.com/take-action-ag…

Benchmarking would have had disastrous consequences for the independent groups. And for patients. It is complicated, but the emergency care system depends on commercial payments to keep the lights in and specialists on call.

https://twitter.com/amychomd/status/1204335339256631297

Many have said that this legislation will only impact the PE groups and those that profiteer. If designed properly, good policy would reign in these profiteers but hold harmless the folks who don’t balance bill. Unfortunately, it’s hard to limit unintended consequences.

https://twitter.com/amychomd/status/1204335381057097728

This is why I have supported IDR. Because it has worked in places like New York. It’s not magical. If it is done right, it protects consumers and reigns in bad behavior by both providers and insurers. vox.com/policy-and-pol…

Per the state of NY, their IDR had already saved $400M, reduced out-of-network billing by 34% and lowered in-network emergency physician payments by 9%. governor.ny.gov/news/governor-…

And it’s been refreshingly effective and encouraging good behavior via a “baseball style” arbitration system that has been viewed as fair by both insurers and physicians. And used in < 0.0113% of cases.

nationaldisabilitynavigator.org/wp-content/upl…

In NY, arbitrators are directed to consider usual, customary and reasonable rates in addition to other data like in-network rates.

Even though there is evidence to the contrary, lobbyists have argued to Congress and CBO that considering market prices (UCR)...

...will lead to healthcare inflation (or less CBO deficit savings.)

So instead of allowing IDR to work as it does in NY, the current bill requires the arbitrator to consider the in-network median but prohibits them from considering UCR (the market rate).

So what is the problem with this?

In 2019, one of the legislative aides on the HELP committee told me that network adequacy isn't a problem because "insurance companies need big enough networks"

But she didn't understand about EMTALA. Because of EMTALA, insurance companies don't need to contract with emergency care physicians or hospitals to guarantee access for subscribers.

https://twitter.com/amychomd/status/1204335343308300288?s=20

Because of EMTALA, the only reason insurance companies negotiate with emergency physicians is based on price.
They get a better deal by putting us in their networks. And emergency physicians benefit by getting patient volume and being paid more reliably.

If mandate a great rate - the median in-network rate- you are removing the incentive for insurance companies to contract with EMTALA physicians. This is the problem.

Why should they get a good rate? Why should the insurance company profit if they haven't done their job?

Patients SHOULD be taken out of the middle. They shouldn't be punished for having terrible insurance and eye-watering deductibles.

But why should insurance company shareholders be further enriched by this? At the expense of the doctors working 24/7/365 on the front lines?

Why would any insurance company with a contracted rate above the median stay in contracts?

What is to stop insurance companies from manipulating their contracts to drive down this rate?

IDR is not magical. It needs to be done right and with attention to be sure that it cannot be gamed.

In February, Ways & Means proposed IDR with these parameters (target median in-network and prohibit UCR from consideration.)

I'll admit, I got "distracted" with COVID...

...and trying to keep my coworkers, family and patients safe through this nightmare.

But I sent similar concerns to staffers in February and they are the same today. I'll just paste the text from an email I sent in February.

"The test of this legislation should be whether it solves the problem of surprise billing while holding harmless the physician groups that were in network previously. If the bill scores huge savings from those of us who don't surprise bill, the unintended consequences are too...

...great and it defunds the emergency care system and EMTALA safety net.

By mandating that the arbitrator consider the median in-network rate and specifying that charges and U&C rates cannot be considered, the arbitration will de facto function as a benchmark rate setting.

The language that mandates that UCR and charges cannot be considered essentially legally takes away the right for private practice physicians to negotiate contracts based on price. For EMTALA-subject physicians, price is the only negotiating lever available. Network adequacy...

...is meaningless for EMTALA physicians.

The CBO believes this and thus scored the W&M bill (with the median in-network target and prohibiting UCR) as providing $18B in savings, nearly as much as the E&C bill.

This does not hold harmless the previously in-network providers...

and will defund the EMTALA safety net and emergency care system at the direct and exclusive expense of the physicians who were previously in-network (don't surprise bill.)"

When CBO scored the HELP version they indicated 80% of savings came from previously in-network contracts.

I assume that CBO will score this similarly.

Honestly, I assume that the provisions in the bill are intentional and that driving down rates to previously in-network providers is actually a feature rather than a bug.

I believe that IDR was allowed, but only with these provisions, because they still get a lot of "CBO savings" to pay for FQHCs & other projects.

Legislation that holds harmless the frontline docs and independent practices that don't surprise bill wouldn't score nearly so well.

And from what I can see, physician groups were intentionally kept in the dark about this legislation. In fact we were told that it wasn't happening at all and no language was ever shared.

Until suddenly, on Friday night at 5:45p, 300 pages of a bill dropped.

And no discussion is allowed. No public hearings. No changes.

@senatemajldr I hope you realize that the lack of outcry over this deal is not because it isn't controversial. It's because all opposition has been silenced.