Ambushed by Schumer: Surprise Medical Billing Bill Bites The Dust

Being ambushed by “surprise billing” is often a legal form of patient abuse, immorally and outrageously administered by the powerful to the powerless. The thoughtfully developed and widely supported bipartisan Murray-Alexander bill would have helped a lot.

How depressing it was to read that it was the Minority Leader of the Senate, Chuck Schumer, tightly tied to the concentrated powerful medical institutions, who scotched this example of rare cooperation in giving succor to the oppressed.

Is Senator Schumer's “wait 'til next year” really an appropriate expression of empathy for the harm that he has just done, allowing once again the swampy adage, them that has is them that gets?

Despicable.

I have the honor of having my article to this effect posted on Benj Demott's interesting FirstoftheMonth.org. Here is the link http://www.firstofthemonth.org/surprise-medical-billing-outrage-and-betrayal-thy-name-is-schumer/

And here is the text:

Surprise Medical Billing: Outrage and Betrayal (Thy Name is Schumer)

December 23, 2019 by Budd Shenkin
Congress can rarely ameliorate even patent outrages.  We know this.  One person’s outrage is another person’s profit, and the profiteer usually has more cash and more leverage than the outragee.  But, it looked like one medical outrage was actually about to be solved, at least partially, by this highly partisan Congress, and highly partisan administration.
The outrageous problem they were on the verge of solving is so-called “surprise medical bills.”  I’ve posted about it here. The surprise bills come when you dutifully report to a hospital that is in-network to you, or in the case of my son who had a tree fall on him in the middle of the night, a state-assigned trauma center, and the hospital is paid by your insurance as it should be. But then it turns out that the ER doc, or the anesthesiologist, or the radiologist, or the trauma surgeon, or the pathologist – in short, all those specialties that you need for your case, are not in the network.  They didn’t need to be, because what’s in it for them?  The hospitals join the insurance network because they have to, to ensure that patients come to them.  But once you’re there, the docs don’t have to compete with anyone for your business, you’re their red meat.  So they remain “out of network,” and they send you a huge bill that your insurance will only pay part of.  That’s the surprise.  It’s not like it’s a birthday surprise, it’s more like legal robbery.  And it can amount to a very large amount of money.
This has been a problem for a very long time, but somehow it has come to a head and, along with the scandal of how expensive medicines have become, it made its way onto the congressional agenda. And, notwithstanding the terribly partisan environment, progress was made with Patty Murray (Dem) and Lamar Alexander (GOP) coming up with a plan whereby the docs’ permissible bills would be related to the average in-network bills for their services.  The plan had wide support.
Until it didn’t. The fix was set to be included in the recently passed appropriation bill, until at the last minute, the very last minute, it was dropped.  There was opposition from those to whom the outrage was a source of profit. That would be many large medical centers, and notably, the large private equity groups who have bought groups like ER docs, put them together nationwide, had each one of the docs drop out of all networks, and raise their standard charges by as much as nearly 100%.  One person’s outrage is another person’s – or corporation’s – profit.
I’ve been waiting to see who succumbed to the pressure, and the bribes of contributions to campaign funds.  I wasn’t sure, but here is the story in the WaPo: https://www.washingtonpost.com/business/economy/congress-showers-health-care-industry-with-multi-billion-victory-after-wagging-finger-at-it-for-much-of-2019/2019/12/19/9422aa6a-2028-11ea-9146-6c3a3ab1be6c_story.html
Turns out a major villain of the piece is our old friend, the ever-ingratiating Chuck Schumer.  “A bipartisan push to curb the practice of surprise medical billing was delayed until next year, with Senate Minority Leader Charles E. Schumer (D-N.Y.) working behind the scenes to raise objections to the package, according to three people familiar with the talks who spoke on the condition of anonymity to share details of private negotiations.”
I might have known.  He who makes his points with glasses on end of nose, convincing the podium of his case as he reads what has been prepared for him, occasionally “with expression,” occasionally looking up and looking around…He who takes every cue and every dollar available from our Bibi supporters at AIPAC.  The article says that Chuck has deep ties to the large medical institutions of New York City. As Gomer says, surprise, surprise, surprise.  They’re making the money from surprise billing – through the docs – and they’re supporting those docs as the docs support them.  The public?  “Next year” we’ll consider it.  Right.  But meanwhile big time capitalistic monopolistic government-owning big medicine is getting everything it wants.
Every study of the problems of health care organization points to primary care as needing the most bolstering, and excess profits of concentration centering on large medical centers and specialty groups as the problem.  Doesn’t matter to Chuck, it seems.
I’m just seething.  More fleecing of the American ordinary person by large corporations in concert with paid off politicians.
They’re not all like that.  Elizabeth Warren recounts how she found out what it meant to be “at the table” when she sat down with Barney Frank as they put together Dodd-Frank.  She wanted something, Barney looked around the table, saw no objection, so he told her, “Ok – you’ve got that.”  Chuck is the definition of the table.  No matter the wide support, the bipartisanship, the outrage.  Let’s get some money for the DCCC or whatever, let’s keep those relationships with the monopolists going, we’re at the table.
Don’t watch them making sausages, they say.  There are lots of trade-offs to be made.  Don’t concentrate just on your one issue, take a broad view.
That may be wise.  But to me, concerned as I am about the health care system, this schmear looks like an unholy payoff to monopolists for legal bribes.

Addendum: This article about medical bills and insurers is relevant. Fraud is involved here, but being “out of network” is key.  And notice how little insurance surveillance matters.

Second addendum: This article shows that certain hospital based specialties especially prone to surprise billings - especially diagnostic radiology, anesthesiology, emergency medicine, and pathology -- have especially high standard charges.  https://www.brookings.edu/blog/usc-brookings-schaeffer-on-health-policy/2019/12/05/provider-charges-relative-to-medicare-rates-2012-2017/

Third addendum (1/7/2020): This article shows how legal challenges can help individuals contest surprise bills.  Now all we need is a national legal service that advertises on TV -- call this number and we'll help you contest your surprise bills!  https://www.statnews.com/2020/01/06/3-legal-challenges-derail-surprise-medical-bills/

Budd Shenkin

Presidential Pardon - A Long Article, and an Oped

Back in February I wrote a blog post suggesting that the power of the Presidential pardon has run into problems of abuse, and needs to be reformed.  I suggested requiring each pardon to be co-signed by the Speaker of the House.  Here's that post:

http://buddshenkin.blogspot.com/2019/02/proposal-presidential-pardon-reform.html.

Then I acquired an excellent co-author, my friend of 30 years David Levine, who is Raymond Sullivan Professor of Law at UC Hastings College of the Law in San Francisco.  Together we wrote a 6,000 word article advocating this proposal, which was published in the Hastings Constitutional Law Quarterly:

https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2099&context=hastings_constitutional_law_quaterly

And now we have reduced those 6,000 words to a succinct 650 words oped, which has just been published in the East Bay Times:

https://www.eastbaytimes.com/2019/12/15/opinion-reform-presidential-pardon-after-ford-bush-clinton-trump-abuses/.

Frankly, it's a thrill for David and me to see our work make it to both legal and popular publications.  Beyond that, maybe it's even possible that the idea will make it to the stage of formal consideration when post-Trump reforms are being entertained.  That would not only be a thrill for us, but a source of great satisfaction for helping to support the idea of America, which animates both of us.

Here is the text of the oped:

A few weeks ago, President Trump pardoned convicted or accused war criminals over the profound objection of his most senior military officials, one of whom, the Secretary of the Navy, resigned in protest.

Obviously, this is not the only presidential power the President has used in an innovative and personal manner, rather than as originally intended and customarily exercised.  In each case, he is forcing the country to ask itself – is this a power that should be retained, be modified, or be further protected?

We believe that the answers to these questions in the case of the power of the pardon are yes, yes, and yes.  And the way to do it, we think, is to modify it by passing a constitutional amendment to require an additional signature for each pardon.  That signature would come from the highest ranking independently elected constitutional official in the line of succession, the Speaker of the House.

Let us explain.

We inherited the power to pardon from the English monarchy. Alexander Hamilton explained in Federalist 74 that sometimes mercy from on high is necessary to improve justice, and sometimes to secure civil harmony by forgiving and forgetting.  Examples of the latter are Washington’s pardoning members of the Whiskey Rebellion,  Lincoln’s and Johnson’s pardoning of Civil War soldiers, and Carter’s pardoning of Vietnam draft resisters.

Presidents largely fulfilled Hamilton’s goals until Ford’s controversial pardon of Nixon after Watergate, to end “our long national nightmare.”  Then in 1992, taking the advice of his Attorney General, William Barr, George H. W. Bush pardoned his friends and colleagues, the Iran-Contra conspirators, which cut short the investigation and shielded him from inquiry into his own possible complicity.

In the waning hours of his presidency in 2000, Bill Clinton pardoned 177 miscreants, over 60 of whom had not been vetted by the Justice Department’s Office of Pardons, including fugitive arms dealer Marc Rich and his wife Hillary’s brother.   George W. Bush commuted the sentence of Scooter Libby, preserving Libby’s right to use the Fifth Amendment to constrain any further investigations.

And now we have President Trump, who, in addition to the war criminal cases, has also pardoned racial profiler Sheriff Joe Arpaio from his criminal contempt of court conviction and right wing provocateur Dinesh D’Souza for illegal Republican campaign contributions. Most ominously, Trump has dangled pardons before potential witnesses against him, has claimed he can pardon himself, and  few doubt he will pardon his family and other close associates if it becomes necessary.

Clearly, although Trump’s excesses are the most extreme, Hamilton’s hopes for the pardon have been thwarted too often since Watergate.

What to do?  We should not repeal the pardon power, because its value has been proved over centuries.  We don't think it would work to add specific restrictions, such as forbidding preemptive pardons, or pardons of close associates and family; such restrictions could never be complete and could be evaded.  Much more protective, we think, would be the  co-signature requirement.

If this requirement had been in force, would Speaker Carl Albert have co-signed for the Nixon pardon, Tom Foley for Iran-Contra, Dennis Hastert for Rich and for Libby, Paul Ryan for Arpaio, or Nancy Pelosi for the war criminals, and for what may come?  We can't know, of course, but bringing a second high official into the process would increase the odds of screening out many questionable pardons.

Constitutional amendments are notoriously and rightfully hard to enact.  We believe, however, that our proposal would not have strong entrenched interests against it, and if worse is still to come from Mr. Trump, the urgency of reform might carry the day.

If unreasonable and self-serving pardons were just a momentary lapse with this president, we could hope that traditional norms would reappear with the next. Given the post-Watergate trend, however, we should require another signature to secure Hamilton's vision.

Budd Shenkin