During HHS Secretary Xavier Becerra’s confirmation hearings on Capitol Hill, he was consistently pressed on a variety of issues: abortion, Medicare for All, and Covid-19, to name just a few. It was shocking, however, that, despite being one of the most hotly contested healthcare issues of the past two years, we barely heard a peep about surprise medical bills. Kudos to Senator Maggie Hassan (D-NH) for being the only senator to raise the subject during the committees’ live questioning.
Stakeholders across the healthcare spectrum need to wake up quickly. While Sec. Becerra is staffing up HHS, the clock is already ticking on the department’s implementation process for the No Surprises Act (NSA), the surprise medical bill law Congress enacted as part of last December’s omnibus. Over the coming months, HHS, along with the Treasury and Labor Departments, will be writing the NSA’s regulatory provisions. The importance of these forthcoming regulations regarding the implementation of the NSA cannot be overstated. In fact, they will have a profound impact on the very survival of the medical profession. Accordingly, the delivery of care across the nation, especially to those most vulnerable, could well fall under siege.
Sensible regulation can make all the difference between good and bad policy. It is imperative, therefore, that HHS builds the NSA’s regulatory framework the right way. Most importantly, this means that the department must ensure that the NSA’s independent dispute resolution (IDR) process is constructed in a simple, accessible, and fair manner. A fair IDR process, wherein all the information brought by both sides of the dispute (physician and health insurer) is treated equally and without bias, is exactly what the law prescribes. Additionally, this is the true intent of the Congressional committees of jurisdiction who wrote the law.
Unfortunately, the health insurance industry has wasted no time in trying to distort Congress’ intention. Chief architect of Big Insurance’s dangerous spin is the benevolent looking USC-Brookings Schaeffer Initiative for Health Policy. Many if not all readers of these pages are familiar with the University of Southern California and the Brookings Institution. But what about the “Schaeffer”? That is Leonard Schaeffer, former chairman and CEO of mega health insurance company WellPoint, which is now Anthem, the largest health benefits company by membership in the country. No matter how much “academic,” “economic expert,” or “think tank” lipstick is applied, it is not hard to guess whose side they are on.
In seemingly benign fashion, the initiative claims it uses “research and analysis to promote health and value in healthcare delivery and to support evidence-based health policy.” Sounds nice. But make no mistake, there is nothing evidence-based here. They are out for blood. And unless medical societies, hospitals, labor unions, patient advocates, and others engage with HHS during this implementation process and uphold the truth, the NSA’s regulations will be the minnow to their shark.
For example, last month, Loren Adler and Matthew Fiedler of USC-Brookings Schaeffer, along with Ben Ippolito, issued a lengthy brief entitled, “Recommendations for Implementing the No Surprises Act.” This paper has already been referenced widely. As a matter of fact, according to a study, Brookings is the most frequently cited think tank by U.S. media and politicians. Well played, Big Insurance.
It is hoped, however, that regulators at HHS do not take the bait. These recommendations have nothing to do with making sure the NSA is implemented fairly, or correctly. Their modus operandi is hijacking the law’s IDR decision-making so that insurers win each case brought to arbitration every time. That means more profits for their benefactors; and the rest of us, we get stuck with higher costs, narrower insurance coverage networks, and fewer physicians.
Case in point: Messrs. Adler, Fiedler, and Ippolito write, “The No Surprises Act instructs arbitrators to consider several factors in their decisions.” That is indeed true. They continue by saying, however, that the NSA “provides essentially no guidance on how these various factors should enter into arbitrators’ decisions.” Pinocchio’s nose is growing. The Committees on Ways and Means, Energy and Commerce, and Education and Labor explicitly stated in a joint document that “the arbitrator must equally consider many factors.” In complex legislation like the NSA, “equally consider” is about as straight forward as it gets.
What is more, Adler, Fielder, and Ippolito suggest “that the agencies craft guidance with the goal of anchoring arbitration outcomes to the qualifying payment amount.” Pinocchio’s nose is now stretching from the House chamber to the Senate chamber.
Of course that is their suggestion, because the qualifying payment amount in this case is the median, in-network rate. That is the health insurance monopolies’ own, made-up payment rate. It has no real bearing to the market rate of care provided in the real world. The authors even admit that, by skewing (“anchoring” minus the façade) the IDR entity’s decision toward the insurers’ preferred rate, “the predictability of arbitration outcomes”, they assert, “would increase.” The bedrock of our country’s arbitration system is fair and impartial judges. If the outcome of a case brought to IDR is already decided in favor of the health insurance company before it starts, then the whole mission, goal, and intent of the NSA’s most important provision is already crushed.
During this season of renewal, it is hoped that many other organizations and individuals rise and weigh in with HHS, and in particular its Center for Consumer Information and Insurance Oversight (CCIIO), over the regulatory implementation of the NSA. The stakes are too high to simply let health insurance companies dictate the rules of engagement. Because if the sharks win, the vast majority of us will end up paying dearly.
Christopher Sheeron is president of Action for Health
