Q&A: ‘The whole process is going to be very opaque’

Chip Kahn, president and CEO of the Federation of American Hospitals, discusses some of the likely impacts of the No Surprises Act on providers, payers and patients when it takes effect Jan. 1.

In just a few months, the No Surprises Act will take effect. How are you telling your membership to prepare for it?

Since the beginning of this process, almost two years ago, we have been very supportive of acting to protect patients. And we’re working with our members now, in terms of implementing this. They’re looking forward to the opportunity to have the simplest, seamless process when patients who are out of network come to the hospital. This act actually will help us with that, both in terms of the emergency room and their hospital payments. It will also help those doctors who treat patients in the hospital but may not work for the hospital, whether it’s anesthesiologists or pathologists or others. If they’re out-of-network, the patient can be assured of a precise payment amount in terms of their cost sharing.

Some experts have said the policy could increase premiums since the No Surprises Act is probably not going to prevent any settlements on unpaid bills at amounts higher than most insurers are paying for in-network care. How might the policy impact premiums?

There are really two parts to this process. One is the patient part. And the other is the payment for services between the hospital or the physicians, and a payer. In terms of the patient part, insurance companies are going to come up with the qualified payments that the patient will pay some proportion of as their cost sharing. I think, at the end of the day, the qualified payments are likely to be considerably less than what’s being paid now by the insurers for those services out of network.
 
And then when we take this other part where it’s between us, the hospitals or the physicians, and the payers, I think the adjudication of those payments is probably going to lead to lower payments overall because the administration is heading in a direction with its regulation for a system in which this qualified payment the insurance companies will develop has primacy.

We have grave concerns about the implications of that, both for in-network and out-of-network activity. So if we think worst case here and this immediate regulation—which is an interim final rule—goes into effect at the beginning of the year and the insurance companies and other payers can use this qualified payment in-network, out-of-network, however they want, I think it will probably lead to some reduction in premiums because they’re going to be paying less on the payer side.

Which wouldn’t be too good for a lot of your members, I’m sure.

We think there needs to be a reasonable payment that’s worked out through negotiation, not some fabrication that the insurance companies develop. Yes, the qualified payments will be based on real data, but the whole process is going to be very opaque. Neither the law nor the regulation provides for much transparency there. 

So we’re not going to know exactly how they calculated the payments. As time goes on and new services get added, they’re going to be able to, in a sense, develop the payments. So we are very concerned that the way the administration has chosen to carry out the implementation of this act will lead to depressed payments and not in a justifiable way.

Do you think the arbitration process for appealing these payments will be helpful in any way, or is there still more work that needs to be done?

The law is very clear that the arbitration needs to be independent. And we are very concerned that the way that the Labor Department, Treasury Department and HHS have designed this regulation will lead to the insurer-qualified payment having primacy in that process, rather than if we can’t negotiate a price, having the ability to really present an arbiter a case and have the arbiter choose the price or a closer price to what the provider or the clinician serves up in the process. We are worried that the process really cannot be independent the way that this regulation is designed.

Let’s go back to thinking about out-of-network and in-network care for a moment. I know the industry has struggled to maintain accurate network directories for a long time, but it’s something payers are trying to address through technology. How can providers make sure they’re offering correct information to patients as well?

There are really two sides in this particular area. I would say my members generally want to be in-network. They want to have that relationship with the patients that really is to the patient’s advantage. It makes that relationship more seamless in terms of the hospital serving the patients. One of the things that led to this controversy is that we don’t know at any given time whether all the physicians who are practicing in the hospital in these specialties, are in- or out-of-network. Sometimes that, in a sense, can change on a dime in terms of how they’re dealing with the insurance companies. So it’s been very difficult to keep track of that. 

I think it’s really incumbent upon the insurers to make sure that patients have a clear understanding of who is and isn’t out-of-network.

Part of the issue is that whether it’s the emergency room physicians or the pathologists, the radiologists or the anesthesiologists, that generally those aren’t physicians that a patient has chosen. A patient shows up at the ER. A patient chose an OB/GYN for a birth or chose a surgeon for some procedure, chose the hospital frequently because the hospital is in-network for an elective procedure. And then the patient only sees the anesthesiologist when they walk in to ask for consent. And that’s probably not the time that the patient wants to look the anesthesiologist in the eye and say, “Are you in-network, or not in-network?” So that’s how we got here with this problem. And I think that the law will help us through that by giving the patient certainty, whether they’re in- or out-of-network regarding their cost sharing.

One of those issues also could be outsourcing, and with the staffing shortages that are going on now. Could those labor issues be affected by the No Surprises Act?

In terms of the specialties, you have two things going on with hospitals. In some cases, hospitals will have the specialists that we’re talking about on staff. And on top of that, they may have a hospitalist on staff. In other cases, they have voluntary medical staff and they may contract with a practice, but those physicians aren’t employed by the hospital. The issue that’s going to be a problem in terms of access is that if the payers come in and try to manipulate this qualified payment, and frankly low-ball it, there will be, I think, a response on the physician side. And we may see some physicians decide not to practice in certain areas of the country or certain parts of a state because the rates in that area are so low, and that could cause access issues, and cause us problems in trying to bring in staff.

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