With the avarice of health insurers now subject to the disinfectant sunshine of independent and legacy media, it’s time to overturn the political favor known as the No Surprises Act, a “law” designed to allow insurers to steal services from physicians under the guise of patient protection.
Tucked away in the wallet of Merry Mittleklass, our avatar patient, is her Blue United Free From Worry Plan insurance card. She’s been covered by Blue United for years, but had never seen the inside of a hospital.
That is, until last Tuesday at 7:44 a.m., when she had surgery at Community Memorial St. Mark’s Hospital to repair a hernia.
Community Memorial St. Mark’s and her surgeon were in-network with Blue United. But the anesthesiology group wasn’t. And, so the story goes, without the benefit of the No Surprises Act, Merry would be “surprised” to find out that Blue United had paid the group $200 and that she was “stuck” with a bill for the remaining balance, $1,375.
In lobbying for the bill, the popular press, the press of payors, and the populism of politicians all framed this as the anesthesia group’s problem, a problem caused by its predatory practices.
The name for this frame? “Surprise medical billing”. The resulting cure? Force the group to take, as payment in full, an amount to which they never agreed, the so-called “average.”
But let’s take a closer look.
Early this year, an insurer, let’s disguise it as “Uncaring Cross”, decided not to renew its contracts with a large anesthesia group because those agreements pay the group more than Uncaring Cross now wants to pay. Come the termination date, the anesthesiologists will be out-of-network. Out-of-network wasn’t the anesthesia group’s strategy. It’s just a fact. As a result, under the common frame, every one of their bills to Uncaring’s insureds will be deemed a “surprise medical bill”.
Let’s take a look from another angle. Six months ago, a radiology group determined that the 80% cut proposed by payor X was unacceptable. (They actually used a different term.) They will not sign the offered contract nor is there any legal or moral reason for them to do so. They will soon be out-of-network, which wasn’t their strategy–it’s just a fact. As a result, under the common frame, patients will be “surprised” . . . and, once again, it will be spun as the group’s fault.
One more view: Some group of pathologists, let’s call them the “Live Free or Die Group”, doesn’t want to contract with any payor. They are out-of-network by choice. And, that makes them an outlier. Once again, under the common frame, patients will be “surprised.”
The “cure” legislated at the federal and state levels by those constructing the frame of “surprise medical billing” was to force non-contracted physicians, whether those physicians are out-of-network by reason of choice or by coercion, to work for a rate to which they never agreed, the so-called “average” rate.
Why? What’s the philosophy, the morality, behind that frame, the frame of “surprise medical billing”? Why should anyone be forced to work for a rate to which they didn’t agree?
Almost at the same time as the impact of “surprise billing” was being flogged, the news was awash with what’s become a familiar story, one that “activists” (even musicians) rail against: people being forced to work for wages to which they didn’t agree. Only those folks are, it is said, constructing iPhones.
In that context, stealing one’s labor is seen for what it is, coercion and theft.
Yet, in a leap over the moral chasm, I’d be surprised if we could find one of those activists who sees forcing physicians to work for rates to which they didn’t agree as the equivalent.
In the context of any of our avatar hospital-based medical groups, the anesthesiologists tossed out of network, the radiology group which refused to take an 80% cut, or the pathologists who don’t want to contract with any payor, is there someone, some entity, which has in fact contracted to provide coverage to the patient, to our avatar Merry Mittleklass?
You bet there is. For one can’t be out-of-network unless there is a network. And that network is a result of Blue United’s contract to provide coverage to Merry Mittleklass.
If Blue United were a general contractor instead of an insurer or health plan, and they contracted to build Merry Mittleklass’s house for $500,000, but then couldn’t get tradespeople to do the actual work for less than $600,000, it would be Blue United’s problem.
If general contractor Blue United can’t force plumbers and electricians to work for less than they’ll agree to accept, why would anyone think that payor Blue United can force pathologists and radiologists to work for less than what they’ll agree to accept? After all, it would be surprise physician services stealing.
Unless the frame is changed as I suggest, that being forced to work for a rate that wasn’t agreed to is theft, hospital-based physicians will never be able to succeed in battling against working for “average” in a universe in which payors throw higher paid groups out-of-network to reduce the resulting average.
Over 160 years ago, Frederic Bastiat, the French politico-economic thinker, warned of the danger of quick fixes like the one legislated for “surprise billing.” In his essay, That Which is Seen, and That Which is Not Seen, he wrote that:
“ . . . a law, gives birth not only to an effect, but to a series of effects. Of these effects, the first only is immediate; it manifests itself simultaneously with its cause — it is seen. The others unfold in succession — they are not seen . . . . Between a good and a bad [politician] this constitutes the whole difference — the one takes account of the visible effect; the other takes account both of the effects which are seen and also of those which it is necessary to foresee. Now this difference is enormous, for it almost always happens that when the immediate consequence is favorable, the ultimate consequences are fatal . . . .”
For hospital executives and office-based physicians who think that the legislated cure to surprise medical billing is simply a hospital-based physician problem, think again: I recently heard someone refer to his larger than expected share of in-network care as “surprise medical billing.” And, in early July 2023, the Biden administration proposed that there should be restrictions on hospital surprise billing. Yes, it’s a slippery slope.
Re-frame the issue for what it really is: Surprise physician services stealing. Now’s the time for the No Surprises Act, and each state counterpart, to go.