About 18 years ago my son Pete had a
big accident that took him to the Sutter Roseville Medical Center,
the designated trauma center for the American River area where the
4,700 pound live oak tree fell on him. It was a very rocky course, he lost
a kidney and had multiple fractures to the lateral processes of his
lumbar spine and had a prolonged recovery lasting months, but the
spinal cord was intact, his other kidney works fine, and he is alive
and well and just gets a sore back sometimes. God smiled on us, is
the way we looked at it.
What didn't smile on us was the
surprise bill we received from the Sutter Roseville trauma surgery
team. They obviously have no competition, since they are the only
trauma surgeons at the only trauma hospital in the area. So why
should they sign agreements with health insurance companies to join
their approved networks, thus agreeing to a fee schedule that
generally calls for lower payments for their services than if they
had no restraint at all? Why should the hospital insist that they do
so when they contract with them; what's in it for them? Fairness to
patients? Don't be naive, we're talking about money here.
Despite the fact that we were well
insured, we were then faced with many thousands of dollars of fees
that the insurance wouldn't cover. This is called “surprise
billing.” We protested – I'm a doctor and I don't take these
things lying down – and eventually Blue Shield paid since it was an
emergency and we really had no choice. Which didn't prevent them
from claiming tens of thousands of dollars from the payments Peter
received from the insurance companies that covered the liabilities of
the parties who were responsible for the tree's having fallen. But
that's insurance companies. No wonder they are hated. It is a
hatred well earned.
We found out later that our situation
was not unique, and today, all these years later with so many
families having suffered, “surprise billing” has at long last
become an issue to be solved. There are obvious very directive
solutions available, such as requiring that all doctors with hospital
contracts be part of the networks with every insurance company that
the hospital has contracts with, but that has not been our
governmental style, when special interests are well represented but
people in general are not.
There is another out-of-network issue
that is somewhat related and also troublesome. Sometimes you need a
doctor or a facility that is outside of your insurance network. It
might be a specialized service available only at a university, for
instance. Or it might be just a specialist who is of decidedly
higher quality than who is in your network. Your insurance company
is supposed to negotiate with the needed out of network service
provider and pay the bill, but they will predictably object that you
really didn't have to go out of network, that the adult oncologist
would have been “good enough,” and your child really didn't need
a pediatric oncologist, or that their network member was good enough
despite the opinion of your primaryc are doctor. Patients might have
to fight for this to be covered, it can take a long time, the result
is not preordained, and isn't that just what you need when you are
dealing with illness, uncertainty about finances? It's really a
disgrace, IMHO.
The issue can actually be rather
subtle. The best primary care doctors want to act as the patient's
medical fiduciary, looking out for the patient's best interest in
every way, beholden only to the patient, not to the company who
employs him or her, or to the payer. Sometimes, that means finding
the best person and facility for the patient with every condition and
for every test. Networks, based on who signs up for whatever reason,
and those who don't sign up for whatever reason, constrains the
ethical duty of the health fiduciary. What can be done to enable the
doctor to refer the patient for the patient's best interest, despite
network relationships? Something should be done.
In a recent paper in the New England
Journal of Medicine, Prowell et al. suggest some remedies for the
surprise bill in emergency care, and for paying for the necessary
out-of-network care with “inadequate networks,” “without
squelching desirable market dynamics,” as the saying goes.
(https://www.nejm.org/doi/full/10.1056/NEJMp1815031)
What they propose is “streamlined
dispute resolution.” This depends on the health plans and
providers submitting to binding arbitration to determine what charges
are “reasonable.” Admirably, they turn to the final offer method
employed by Major League Baseball for a model.
“In this approach the arbitrator
must choose one of the two parties’ final offers, rather than
determine the “right” amount independently. Although arbitration
has some administrative costs, narrowing the options and
disseminating precedents simplifies the process and encourages the
two sides to reach a settlement on their own.”
They suggest that
this technique could be used in each case when an out-of-network
provider who rendered a service refused to accept the insurance
company's offered payment, or it could be done prospectively.
While what they
suggest would be an improvement over the current restrictive and
patient-unfriendly non-system, it's really ridiculous to approach
such a systematic problem on a case-by-case basis. Patients just
should not be subjected to all this pressure, all this
decision-making when they have such limited information. And primary
care docs shouldn't have to waste time in fulfilling their fiduciary
duty, time that could be better used inputting data to their EHR's.
The law and organizations should work for this vital duo, not the
other way round.
So, here's what I
suggest. One, we need to compel hospital-based doctors to belong to
the same networks that their hospital does. That's just got to be
the law. What should be the rate of their pay? Well, why not use
that same final-offer method? It's true that rates can't just be
standard throughout a state or a region; sometimes there are
scarcities and sometimes plethoras, and the market needs to be used
to find proper rates. I would think the final-offer method should
serve that purpose quite well. Exit the surprise billing problem.
Two, out-of-network
ambulatory consultations, tests, and even prolonged care needs to be
available to the vital duo (primary doc and patient) on a routine
basis. One way to do this would be to introduce a law that
out-of-network providers be paid at 110% of the rate they are paid by
their highest paying network of which they are a member (or maybe
second highest?) Not only is this obviously better for patients,
but with this increased competitive pressure on networks providers
who are currently protected by the assured in-network referrals, the
quality of the network providers themselves should improve. It's
true that a few providers are members of no network at all; for them,
a percentage of Medicare rates could be established, or they could
just be generally unavailable ( but only if there were an adequate
number of similar providers available.) Presto! Free choice of
patient and primary care provider would become much more of a
reality, and market competition would be enhanced.
Freedom is a
precious thing, but the time for freedom in medicine is long past.
It is ruled by oligopolistic insurance companies, oligopolistic
providers, and to a lesser extent by government. Our system will be
replaced neither completely nor soon; what we need are rules and regs
that progressively move it toward true competition in price and
quality, and which progressively give patients a better deal. That's
what my proposed new rules would do.
It's time to think
straight and stop kow-towing to outdated concepts and imperfect
understandings, and to show a little courage. Time's a wasting.
Budd Shenkin
