September 01, 2018 01:00 AM

As consumers' out-of-pocket costs grow, will the patient bill-of-rights movement rise again?

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Updated Sept. 10

Emergency physician Dr. Matthew Wetschler was body surfing off Ocean Beach in San Francisco last November when a wave slammed him head-first onto the ocean floor, breaking his neck and paralyzing him. Another surfer pulled him out of the water just before he drowned.

He was taken to Zuckerberg San Francisco General Hospital, the closest hospital that was well-equipped to treat him, where neurosurgeons performed surgery to fuse five vertebrae and maintain blood flow to his spinal cord. After months of physical therapy at Santa Clara Medical Center and Valley Medical Center, he's walking, but still has no feeling in his hands.

During his grueling recovery, Wetschler received frequent calls from bill collectors seeking payment of nearly $500,000 in medical bills from the hospitals and physicians, plus a $13,000 bill from the air ambulance company that flew him 40 miles to Santa Clara for rehab care. Those providers were not in network for his insurer, Oscar Health.

“I had a devastating injury and I stayed fairly optimistic,” said Wetschler, who's 38. “The only time I felt defeated or helpless was in dealing with the financial repercussions. I cried and lost a lot of sleep over it.”

Wetschler's Kafkaesque experience with a large out-of-network bills and opaque healthcare bureaucracies is common. Nearly 18% of hospital stays for members of large-employer health plans resulted in patients facing out-of-network balance bills, the Kaiser Family Foundation recently found. That rose to 27% when patients passed through the emergency department.

Healthcare consumers also face other common problems with cost, coverage and access, which may increase as the federal government allows the expansion of skimpier, less-regulated health plans. These problems include:

Coverage denials for emergency department visits that insurers later deem unnecessary.

Lack of access to specialty providers in health plan networks.

Difficulty in getting coverage for mental health and substance abuse treatment from health plans.

Delays in receiving care due to plans' preauthorization requirements on providers.

Patients' inability to find out from providers ahead of time how much they will owe for particular services.

Large out-of-pocket costs for prescription drugs, particularly specialty medicines.

But there's no sign that help is on the way from federal policymakers or regulators. The federal inaction is frustrating consumer advocates, even as it's forcing state lawmakers to act. Unlike in the 1990s and early 2000s, there is little or no bipartisan political agreement in Washington that strong measures are needed to protect healthcare consumers from abusive practices by health plans and providers. And the Trump administration so far has been unwilling to use its regulatory authority to offer protections.

“There's plenty to do in the area of consumer protection, with high deductibles and out-of-network bills,” said Dr. David Blumenthal, president of the Commonwealth Fund. “But there is an anti-regulatory fervor we're seeing in Congress and conservative circles that will be an obstacle to moving a consumer-protection agenda.”

Another hurdle is that the identity of the perceived villain is no longer as clear as it seemed 20 years ago, with today's providers sharing responsibility for surprise bills and high out-of-pocket costs. That puts policymakers in the thorny position of potentially favoring either plans or providers in rate-setting.

“Back in the '90s, it was more the excesses by plans to deny access to services and providers that created the big public pushback,” said Chris Jennings, a Democratic health policy consultant who advised the Clinton administration. “Now it tends to be more focused on provider billing practices. Politically, it's a little easier to criticize insurers than providers.”

Congressional Republicans have been largely silent on these issues, though a few have left the door open for action. Out-of-network emergency bills are “a real-life issue that affects families,” said Sen. Bill Cassidy of Louisiana, who added that he's also talking with HHS officials about regulating air ambulance charges.

“There is potential for bipartisan cooperation,” said Cassidy, who is more focused on working with a group of Republican and Democratic senators on healthcare price transparency. “And if there isn't, shame on Congress.”

Gridlock reigns

In many ways, consumers' cost and access problems are worse now than they were when Congress did try to take action two decades ago. Today they face much higher out-of-pocket costs than they did in the 1990s, despite the expansion of coverage under the Affordable Care Act. Both employer health plans and individual-market plans have steeply ratcheted up deductibles and coinsurance, while adopting narrower networks that may lack needed specialty providers.

Responding to growing public anger, congressional Democrats have offered a number of patient-protection bills that are likely doomed under the current administration. A broad measure spearheaded by Sen. Elizabeth Warren of Massachusetts, called the Consumer Health Insurance Protection Act, would prohibit surprise bills for ED care, shield patients from out-of-network bills if they rely on an inaccurate provider directory, and establish an ombudsman program to track consumer complaints about insurers.

Sen. Sherrod Brown of Ohio and Rep. Lloyd Doggett of Texas have filed bills to bar providers from billing patients for out-of-network bills unless the patients consented ahead of time to receive care from non-network providers. A bill sponsored by Sen. Jon Tester on Montana would allow states to regulate air ambulance companies, whose huge out-of-network bills have caused a furor in many states.

And Sens. Claire McCaskill of Missouri and Ben Cardin of Maryland are pressing the Trump administration to scrutinize whether Anthem's policy of refusing to pay for ED visits it deems unnecessary complies with federal law. Blue Cross and Blue Shield of Texas just implemented a similar approach.

Congressional Republicans have not joined them in these efforts, though some, like Sen. Roy Blunt of Missouri, have criticized insurers for refusing to cover ED visits.

The main bipartisan effort currently is a working group led by Cassidy that seeks to draft a bill to improve price transparency.

“I call it giving patients the power, and when you do that good things happen,” said Cassidy, who added that he's reluctant to support any regulation “that's burdensome to the system.”

States have the power

It's a different political story at the state level. Republicans and Democrats in states including California, Florida, Georgia, Missouri, New Jersey and New York have joined together to pass consumer protection laws in the areas of out-of-network bills, coverage for emergency care and provider directories.

Earlier this year, the GOP-controlled Missouri Legislature passed a bill that bars surprise bills from out-of-network providers in emergency facilities. It also requires carriers to cover emergency services for situations a “prudent layperson” would consider an emergency. That was a response to Anthem's policy, rolled out in Missouri and five other states, that it will deny claims for ED visits that the insurer does not consider to be an emergency.

“If providers do a good job in satisfying customers, we won't hear complaints from constituents,” said Missouri Republican state Sen. Paul Wieland, an insurance broker, who sponsored the bill. “But when they cut corners and do things that aren't fair and we get those calls, we have to step in and do something legislatively.”

Even so, most states do not have laws that directly protect consumers from balance billing by out-of-network providers for care delivered in an ED or an in-network hospital, Georgetown University researchers found last year. At the time of the study, 21 states offered some protections, but only six had comprehensive policies.

State action has its limits. States cannot regulate self-insured employer health plans, which cover most workers who have health insurance through their job.

“Given that so many people are in self-insured plans, we need Congress to pass protections more broadly so no one has to worry about surprise bills,” said Claire McAndrew, director of campaigns and partnerships at Families USA, a consumer advocacy group.

Ambulance costs that fly above state oversight

One issue that experts believe only the federal government can address is giant out-of-network bills from air ambulance companies, which courts have blocked states from regulating under a federal law governing air carriers.

Erin Roth of Greenwood Lake, N.Y., battled for nearly three years to get a $34,000 lien removed from her late father's house after he was airlifted 18 miles to Westchester Medical Center following a heart attack on his construction job. The lien for the out-of-network bill was removed in January only after a TV news reporter asked the air ambulance company, Rocky Mountain Holdings, and her father's insurer, Aetna, about the situation.

A spokeswoman for Colorado-based Air Methods, which now owns that air ambulance company, said it could not comment on Roth's case due to patient privacy laws. But she said her company does all it can to take patients out of the middle of out-of-network billing disputes with insurers and is trying to negotiate contracts with all payers. An Aetna spokesman declined to comment due to medical privacy issues.

Roth, a 32-year old environmental manager for an aviation company, said she called Aetna many times and spent hours on hold, then would reach someone who knew nothing about her case.

“It was just awful,” she said. “It took a lot of time away from grieving for my father. The fact that there is no patient advocate there to walk you through this is terrifying.”

Jennings, the Democratic healthcare consultant, predicts the patient protection issue will rise again when smart politicians recognize it could be a political winner in a period when other big healthcare reforms are blocked due to partisan gridlock in Congress. He sees public dissatisfaction with the health system mounting, but not yet to the levels of the 1990s.

“I'll be shocked if we don't see this in the 2020 election cycle,” he said.

Wetschler, the doctor injured in the surfing accident, has finally gotten the hospitals, physicians and his health plan, Oscar Health, to waive most of his out-of-network bills. But he still gets calls from collectors on about $40,000 of that total, including $11,700 for air ambulance services from ProTransport-1.

Zuckerberg San Francisco General, Oscar, and ProTransport-1 did not return calls for comment.

In his view, there should be consumer protections in place so patients don't find themselves in this type of terrible situation, which can destroy their finances.

“I'm a doctor with a master's degree in health policy, yet I feel so overwhelmed that it's almost paralyzing,” Wetschler said. “I'm stuck in no man's land. For a person with no medical training, what hope is there?”

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