Congress Bans Surprise Bills (mostly)

On Super Bowl Sunday my son managed, in that mysterious preteen boy way, to break his leg while snow sledding. We went to the emergency department and received good, straightforward care. His leg was splinted and his pain was controlled in time for kickoff. He’s healing up nicely.

But now my family has a pendulum swinging over its head. Will we get a bill that is as straightforward as his care was, or will we get a set of “out-of-network” bills, even though the emergency department we went to was considered “in network” (we checked)?

This is no hypothetical threat. Hundreds of thousands of Americans get stuck with out-of-network bills from emergency departments, often for tens or even hundreds of thousands of dollars, because of a sinister business model being advanced by private equity firms. Those firms have twisted this quirk of American medicine, where a doctor working in an in-network hospital can be considered out of network, into a profitable business model in which they buy physician groups and intentionally move the providers out of network. It’s exasperating not only for its shadiness, but for the fact that the out of network doctors often charge rates far above what insurance companies are willing to pay. And it works: as many as one in five ER visits have surprise bills attached to them.

But late in 2020 Congress did something that seems like an obvious bipartisan win for everyone involved, but which was kept from happening for a depressingly long time by lobbying from those same private equity firms: they banned surprise medical billing. Some are calling it “Sarah Kliff’s Law,” after the former Vox, now New York Times, reporter who asked people to send her outrageous examples of this kind of behavior over the last few years.

The law requires insurers and medical providers who cannot agree on a payment to, instead of just mailing out outrageous bills destined to be sent to collection agencies, use an outside arbiter to settle on a fair fee. The fee is based mostly on typical payments for similar services. Then the patients can be charged the same cost-sharing they would have paid for in-network services, and no more. The most powerful effect of the law may be in avoiding arbitration altogether; the New York Times reported last winter that, in the dozen or so states that have set up their own arbitration systems like this prior to Sarah Kliff’s law, most price disputes get successfully negotiated before an arbitrator is even involved.

The law is not perfect. It doesn’t take effect until 2022. And while it will apply to doctors, hospitals, and air transport (which can generate particularly huge bills), it excludes ground ambulances even though a majority of ambulance rides nationwide generates an out-of-network bill. Sarah Kliff herself reported that the omission was due to lawmakers’ fear that untangling the complex local and federal regulations around ambulance services would have delayed or killed the entire bill. If you’re an optimist, you’ll predict that Congress will take up the ambulance issue separately in the future. If you’re a pessimist, you’ll predict that private equity firms will simply move their money away from ER physician groups and toward ambulance services.

Learn more about this kind of skullduggery and what you can do to fight it in the KBGH Book Club.

As the Medical Director of the Kansas Business Group on Health I’m sometimes asked to weigh in on hot topics that might affect employers or employees. This is a reprint of a blog post from KBGH.

I'll encourage patients to record medical visits on their phones...IF I can use the recording as my documentation

In my telemedicine days, I complained constantly about the dual data entry I was forced to do. "Dual" in that I was seeing patients through a platform that could easily have recorded the visit, but I was still obligated to generate a note for billing purposes. I don't mind writing notes; I write pretty comprehensive recommendations on platforms like RubiconMD. It's the tedium of being a data entry clerk and recording things that no one will ever read that's tough. Notes are for doctors to communicate: What problem are we collectively trying to solve? What changes are we seeing in lab results or symptoms or tumor size?

For that communication to happen, the notes need to be pretty short, including some objective measures and beyond that, basically just the assessment and plan. No doctor has ever--ever--reviewed the Review of Systems from another doctor's note. Ever. But we're required to record an ROS so that we can bill under E & M (Evaluation and Management) codes, introduced to much criticism in the mid-1990s. Ditto the family history; when I see an endocrine patient, I sometimes have very specific questions about genetics and family history that are astonishingly unlikely to be included in a note from a primary care doc or, say, a general surgeon. But I dutifully click through the multiple screens that it takes to enter the information, just so that other docs can ignore it. This process, combined with the poor design of most electronic health records, is a primary driver of physician burnout, according to a 2013 RAND analysis. The assessment and plan is, I'm confident, the only part of the note that is consistently read by other docs. That's why, back in my salad days of old-fashioned transcription, I put the A/P at the top of my note. Docs could read it first, and then they could look at whatever other parts of the note they needed to only as-needed.

Notes increasingly are for patients, too. Open Notes, a project originally started in Boston kinda sorta over the objections of docs, has proven popular with patients and with providers. Patients like having access to the chart (duh). But I think the actual recording of the visit, like in the video above, may serve a better purpose for the patient, who can go back and review the doctor's words. The written note, conversely, may be a better place for the patient to record corrections or to report new symptoms. 

The "Snapchat for medical visits," as some people are calling apps like Medical Memory, gives me the cold shivers. That comes as no surprise to anyone who has bumped up against my fear and loathing of social media. But even now, without the aid of dedicated software, patients surreptitiously record the audio of a large number of visits (as much as 15% of patients, according to one cross-sectional study. Why not allow docs to use the patient recording (with both patient and physician consent, and with both having access to the recording) to account for the majority of the documentation? In such a model, the physician would simply have to record an assessment and plan?

It's reasonable to wonder how the recording could be used for billing, since coders historically go through written notes and check off various elements of the exam. But I'm confident that most of the complexity of the visit could be ascertained from the content of the assessment and plan; it would require no more coaching (and far less implicit encouragement of "chart buffing") than what coders do with residents and docs now.