Surprise Medical Billing (Balance Billing) Potential Federal Legislation


Update: Surprise Medical Billing (Balance Billing) Potential Federal Legislation

Many emergency medicine groups are currently out-of-network with major private insurers, and therefore bill patients the difference between their charges and what the insurance company paid (referred to as “balance billing”).

This scenario may cause friction with patients and hospital administrators, especially where the hospital itself is in-network with the payer. However, many emergency medicine groups believe the in-network rates offered by some private insurers are inadequate and leave them no choice but to remain non-par with those payers.

Such bills are often included under the term “surprise medical bills” because patients were treated at an in-network facility, but the provider group itself was out-of-network and balance billed the patient. Some states have already addressed surprise medical bills and pressure has mounted on Congress to take action at the federal level.

This month a flurry of activity on Capitol Hill has produced legislative drafts, hearings, and announcements focused on surprise medical billing. The Senate, House, and Administration have all announced plans to address the situation, including a number of possible approaches. All agree that the patient should be taken out of the process and be responsible for only their in-network deductibles and co-insurance.

Final legislation is likely to contain recommendations from legislative and other stakeholders, which propose various solutions, such as:

  • Set Rates: pay out-of-network providers a median in-network rate
  • Network Matching: require all hospital-based providers be contracted with the same payers as the hospital
  • Bundled Billing: prevent hospital-based providers from submitting claims or billing patients (the facility would provide a single claim, including professional fees; physicians would be reimbursed by the facility)
  • Consent: Require patient notification and consent to balance bill for out-of-network services
  • Arbitration: create arbitration processes for providers and payers disputing the amount of out-of-network reimbursement
  • Databases: create state-based databases to collect claims and payment data for all payers
  • Price Transparency: healthcare providers to furnish expected costs for services to patients in advance of treatment
  • Network Adequacy: requirements that insurers provide adequate networks

Innovative is closely monitoring the situation and will be part of a group visiting with congressional and administration officials in Washington next month regarding healthcare reform in general, and surprise medical billing in particular.

Innovative executives are actively involved in national organizations that help inform and guide policymakers on healthcare issues, including: Healthcare Business Management Association (HBMA), American College of Emergency Physicians (ACEP), Emergency Department Practice Management Association (EDPMA), American College of Osteopathic Emergency Physicians (ACOEP), Workgroup for Electronic Data Interchange (WEDI), and others.


The Way of All Flesh


The topic of artificial intelligence (AI) is a vast and complicated one. It’s alluring to the wacky and visionary, a source of terrifying possibility to the unhinged uncle standing before the half-closed blinds and looking into the grey empty street. The experts say it’s the way of the future and when the entrepreneurial technocrats start making prophesy, it’s best, as the last twenty years have indicated, not to drag your heals too much in opposition. It’s more favorable to look into what it’s all about.

AI is, simply put, a branch of computer science that develops machine learning. This makes it seem like something you can shake hands with, be friendly. Though it’s become a hot-button topic in recent years, it’s not necessarily that new a concept. In the early 1940s Alan Turing predicted that digital computers would ultimately be sophisticated enough to engage in logical reasoning. MIT, circa 1950, dedicated a program of study to it. That was three decades before the first digital wristwatch, twenty-four years before the first pair of Nike shoes swooshed into the market, and forty-four years before Mr. Zuckerberg’s birthday.

In the chaotic world of healthcare, AI offers far-reaching possibilities geared toward addressing problems that have materialized out of our reliance on unsustainable processes and procedures. In “Patient, Heal Thyself,” Roy Smythe puts these clumsy holdovers succinctly, writing, “[w]hile modern medicine has made amazing contributions to acute care, reducing mortality and mass epidemics, the organized structure of it is not effectively serving the general medical needs of the world’s population, and those chiefly responsible for patient care—physicians, nurses, and other caregivers—are being pushed to the point of physical and psychological burnout.”

This is where experts say AI can play a vital role in protecting doctors and other medical professionals from oversaturation in inefficient practices—repetitive tests, monitoring, reliance on limited databases, workflow and administrative tasks, clinical judgments and diagnosis, image analysis—leaving them more opportunity for engagements that require keen human supervision. And of course someone will need to keep an eye on the technologies.

AI also empowers patients to play a more active part in their own care through the utilization of apps, virtual consultations, remote monitoring, and other technologies that prevent avoidable hospital visits and excessive expenses. For remote populations lacking accessible medical care, the technologies will be, in many ways, a salvation.

This all makes AI seem jolly good and warm saline sea breezes and something to anticipate, something to look forward to watching mature, like the neighbor’s five-year-old who seems to be fascinatingly competent with a tennis racket. You look forward to its adulthood. And to a large extent this promise is appropriate.

But, on the other hand, maybe we shouldn’t altogether forget that paranoid uncle tracking a residual unease, surveying the boulevards. A lot of AI’s future rests in cost-saving practices and financial incentives, not altruism. Maybe we should ask questions if the physician shows up for the pre-op consultation and explains a machine will be wielding the scalpel. Maybe we should feel somewhat unsettled when our EHRs are abstracted to some cloud-based data center to live an eternal life alongside electronic reports on other people’s bodies. Maybe we should feel dubious when we can’t get into our GP and, as recourse, a series of codified multiple-choice answers prescribes us antibiotics for our kid’s sore throat.

Subdued paranoia and articulate skepticism have always played important roles in improving revolutions in their infancies. A new form of healthcare is moving inevitably in the direction of AI technologies. The current system is unsustainable—there’s unanimity on this. But that doesn’t mean a dose of slack-jawed skepticism isn’t a boon in our approach to these new, mesmerizing technologies.

Obamacare Embattled, Again


In 2007, George W. Bush nominated Judge Reed O’Connor to a federal court judgeship. We went on living our lives, and he his, frequently making controversial rulings on how the law interprets sexual orientation, gay rights, and yes, the merits and demerits of Obamacare.

Then, late on Friday afternoon, December 21st, 2018, when we were all going about our business, preparing for holiday parties, driving home from work, wishing motorists ill or well, reluctantly shopping, or simply looking forward to a vacant weekend before Christmas really asserts itself, he produced a hostile 55-page opinion deciding against the constitutionality of Obamacare. Our phones dinged. We collided with other disheveled shoppers—there were fender-benders. We released a long pensive exhale, and asked, Again?

As we will recall, when the ACA appeared before the Supreme Court in 2012, Chief Justice John Roberts, casting the deciding vote, interpreted the individual mandate as a constitutional exercise of Congress’s taxing power. Well, the 2017 Republican Tax Bill got rid of the individual mandate penalties, and on 12/21/18, its absence became the deciding factor in O’Connor’s courtroom.

According to O’Connor, it is “essential and inseverable from the remainder of the ACA,” and without it, “[the] architectural design [of the Bill] fails.” In conclusion, O’Connor wrote, “[t]he court finds the individual mandate can no longer be fairly read as an exercise of Congress’s tax power and is still impermissible under the interstate commerce clause—meaning the individual mandate is unconstitutional.” This means that once again the ACA will have to sit through months and months of dissection, defense, mutilation, insults, and heralding before the various courts likely punt it back to the Supreme Court, where that venerated body will either agree to review it or not.

Be on the lookout come Christmas, 2019.

Shortly after O’Connor’s decision, praise and disapproval came surging out of the various camps. President Trump hastened to Twitter to dispatch his sense of vindication: “As I predicted all along, Obamacare has been struck down as an Unconstitutional disaster… [g]reat news for America.” (At least someone feels predicative and comprehending these days.) And its usual supporters put out vehement promises of appeals and fights.

Since the ruling marks an immediate termination of the law, to quell fears for those insured through ACA exchanges, Seema Verma, administrator of the Centers for Medicare and Medicaid Services, wrote on twitter that “the recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.”

In 2010, the ACA introduced voters to imperfect medical insurance while also, crucially shaping up and admonishing the industry for its decades of profitable misconduct. Whether the issues come from the compromises and provisions Democrats had to stuff into the law to get it passed in 2010, or Obama’s signature legislation is altogether hogwash, no bill faces nearly a decade of enmity without having at least something wrong with it. In it each party finds the reflection of everything they dislike about the other side and revere about themselves—Democrats protect it, and are often obtrusive about its limitations, because it marks a signature achievement that, in theory, advanced the livelihood of many Americans. Republicans abjure it because every recollection illustrates government overreach, the countless failed attempts to block and appeal it, its reputed costliness, etc. This is why it neither thrives nor dies.

But as the midterms reiterated, healthcare is a bipartisan concern for voters. Those who don’t have access to medical insurance through their employers would like to avoid crippling financial difficulties if and when they face health problems and as the polls indicate, prefer the humble safeguards offered by the ACA over returning to the unsustainable system pre-ACA, or indeed, the healthcare bills proposed during Trump’s presidency.

In any event, we can only hope that O’Connor’s ruling, tiresome as it may be, will help spawn a resolution that might end in either an enhanced version of the ACA or something altogether different—and better.  


One of the Internet’s gifts—and occasional annoyances!— is its space for people to self-publish their alleged expertise on a subject. Surely this must be some form of purging. I feel an odd mixture of depression and excitement toward these online message boards. The writers on healthcare forums vary from doctors, hospital executives, and private insurers, to young families whose finances have been wrecked by medical expenses.