Surprise! Bills still exist.
A major victory is still not enough.
On January 1, 2022, the American healthcare system was fixed for good. This newsletter can close up shop; unfurl the Mission Accomplished banner. The No Surprises Act—henceforth known as The Good NSA—now prevents patients from receiving “surprise” bills, thus ending the only bad billing practice in America. Now, if you get a bill you can’t afford, it must be your fault.
I’m being facetious and very very annoying; I don’t think anyone would claim that this law fixed American healthcare entirely. But I can’t see the celebration of a victory like this without bitterly thinking about the endless other profiteering cruelties that remain in place, and the patients who will be harmed by them. It is simply not enough.
In November, CNN wrote that come January, “patients won't have to fear as many surprise medical bills come January”—not none, but not as many. The Fewer Surprises Act. They quoted Secretary of Health and Human Services Xavier Becerra’s statement in November, after the release of a report detailing the extent of surprise bills, that “no one should have to worry about going bankrupt after falling ill or seeking critical care.” In July, the Washington Post quoted Marty Walsh, Biden’s secretary of labor, saying of the new rules: “No one should ever be threatened with financial ruin simply for seeking needed medical care.” These are true normative statements that are sadly not rendered irrelevant by this new law. People will still worry about going bankrupt when they fall ill; people will still be threatened with financial ruin for seeking care for those illnesses. It will still be possible, even common, to receive large bills for medical care, or to avoid care because of the prospect of those bills.
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A ban on most surprise bills is still great, particularly considering the size of policy victories that can be won at all these days. The people who worked to pass it should be very proud of themselves, including the academic researchers who studied the issue and the journalists who covered it (and NOT including Rep. Richard Neal). But it’s important to be honest about how bad American healthcare is, something that I think most people actually underestimate (until it ruins their life). Any victory, even the biggest reform in years, must be viewed against the towering horror of this system; vast and cold, indifferent to the unnecessary suffering it creates, and immensely powerful.
As of January 1, the law protects patients from ‘surprise’ bills—an out-of-network bill for emergency or “post-stabilization” care, or from an individual doctor received at an in-network hospital—by requiring private health plans to cover these charges. It also requires plans to cover out-of-network air ambulance charges, usually in the tens of thousands of dollars, which are the result of a majority of air ambulance rides. If a patient’s care results in one of these bills, insurance companies and providers will have to fight about settling up between themselves, without sticking the patient with the cost. If they can’t agree, they’ll get the help of an arbitrator, who will start from the median in-network rate for those procedures. (This part is subject to a lawsuit by horrible doctors who suck, but the outcome won’t affect whether or not patients have to pay the bill; it’s just about who can make more money from our bad healthcare system.)
There are a couple of stupid things about this law that won’t have direct impact on patients, like the fact that the arbitrators are barred from considering the rates for Medicare, even though government-set prices are the only ones arrived at through an even slightly transparent process (i.e. you can actually ask the question of how they figure it out, unlike for hospitals). Everything that increases the cost of healthcare ultimately affects us all, but that’s not what we’re talking about today; we’re talking about direct financial burdens on patients, the thing this law is designed to alleviate. For all the good this law will do, there are countless other cost-based barriers and abuses in the healthcare system that remain firmly in place. (And it doesn’t do anything at all for uninsured people.)
Let’s say you saw an out-of-network provider during an expensive and intensive emergency visit, like a heart attack that required surgery and several days in hospital, or the premature birth of a baby. Even the negotiated in-network rate that would previously have been inaccessible to the patient’s insurance plan could be hundreds of thousands of dollars, and the total amount that insurance pays affects the amount patients pay. If you have an out-of-pocket maximum of $8700 (the maximum allowed for an individual in 2022), you could conceivably have to pay that whole thing for one big visit, after your deductible, coinsurance, and co-pays. If you get a bill for that amount now with this law in effect, you’re probably like, “Thanks sooo much, St. Fuckhead Hospital, but I still don’t have that.” Is $8700 lower than hundreds of thousands of dollars? Of course. Is it still going to follow people for years? Is it still going to cause immense and unnecessary stress? Is it still going to terrify people out of going to hospital, or prevent them from returning for follow-up care? Yes, it is, and it doesn’t have to reach $8700 to do so, either.
Perhaps the most glaring flaw in the No Surprises Act: The bill doesn’t apply to ground ambulance transportation. These are single largest source of surprise bills, and around half of all rides result in out-of-network charges. This is especially ridiculous since it’s arguably the form of medical care that patients have the least ability to ‘shop’ for; even if you were able to blurt out the name of an in-network emergency room, you’re going to get bundled into whichever ambulance that’s dispatched to you.
Why this oversight? According to the Times shortly after the bill passed, it was “too hard.” Lawmakers cited “the diversity of providers, complex layers of state and local regulation, and a dearth of information,” and the difficulty of dealing with local governments who often run ambulance services.
Here is the thing: I don’t care. Figure it out. There’s no excuse for sticking patients with a bill in a dispute between providers and insurance over what the thing actually costs, regardless of how big that discrepancy is. This is the logic underpinning the entire law, and it’s just as true for ambulances as it is for emergency room services; these are things that people must feel comfortable using when they are urgently sick. People in America will still feel compelled to call Ubers because they fear the cost of an ambulance, a cost often stemming from the problem that this law declined to address. Plus, the Times noted that several states have actually barred surprise billing from ambulances, despite how difficult it apparently is.
(This is an aside, but: The paper also repeated the claim from lawmakers and staffers that lobbying from ambulance services didn’t affect their omission, which I’d suggest is at best a simplistic way of looking at it and at worst a huge lie. Come on! For one thing, the American Ambulance Association’s lobbying filings for 2020 indicate that it actually did lobby lawmakers on surprise billing. It paid three different lobbying firms and seven lobbyists that year, five of whom had previously worked in Congress, spending $800,000 on registered lobbying. The PAC for the largest ground ambulance company in the country gave $57,500 to candidates for Congress in 2020. Just saying.
The No Surprises Act works hard to spackle one dinged-up wall in a house that’s more hole than brick. You could successfully prevent every single surprise out-of-network bill and still have endless examples of patients harmed by the costs of American healthcare. It happens every day, in every corner of the country.
To illustrate this point, here is a non-exhaustive list of practices in American healthcare that are still legal—either explicitly or because laws are not enforced.
Refusing to treat a patient with an outstanding balance, if it’s not an emergency. This is totally legal. A doctor—even if they’re the doctor you see regularly, the only one in your network within driving distance, the only one you can get to by bus on your day off, the only one who you could get an appointment with—can tell you to fuck off if you owe them $100 and you’re not immediately dying.
Similarly, making patients put a credit card on file before they can receive care. One billing consultant told Revcycle Intelligence: “Why shouldn’t it be an expectation that a patient pays their bills and not determine how much they can pay us each month … it could become an expectation like going to the grocery store to get your groceries.” She added: “We’ve been giving it away for so long and nobody has cared that the doctors have suffered because they make a lot of money, but it’s not true. We’re here providing a service just like the next person is.” IF THEY ARE MAKING A LOT OF MONEY THEN WHAT ARE YOU FUCKING COMPLAINING ABOUT, AMY
Collecting an up-front charge before care for patients who have deductibles. My primary care practice does this, in fact.
Billing patients for absurd out-of-network prices for planned treatments that aren’t emergent or a ‘surprise.’ I’ll be surprised if there isn’t some fudging of this distinction in the coming years.
Speaking of absurd prices, it is not only legal but the financial lifeblood of our hospital system for hospitals to inflate their list prices, which determine those out-of-network charges; they truly do not have to justify them to anyone, including themselves. $60 ibuprofen? Sure. $5000 to sit in a waiting room? Absolutely.
Out-of-pocket maximums of $8,700 for an individual and $17,400 for a family.
Hospitals placing liens on settlements of car accident patients on Medicaid, for charges far higher than what Medicaid would have paid.
Hounding the parents of a deceased pre-term baby for $257,000 because the hospital mistakenly billed the wrong insurer.
Everything about this:
Charging babies’ births to the insurance of whichever parent’s birthday comes first, regardless of the parents’ wishes or who has more generous insurance.
Suing patients for unpaid hospital bills, resulting in their wages being garnished by the state, regardless of how inflated those charges are.
As illustrated by that same story, having cancer patients sign an “open-ended payment agreement” while they are “bleeding and in pain.” This bill was upheld by a judge, who said the patient had “the ability to decline the surgery” if she didn’t agree to those terms.
Arresting patients (including cancer patients) if they don’t show up for court dates related to those lawsuits.
Flouting laws that require non-profit hospitals to provide charity care; Kaiser Health News found that patients who qualified for free care were being billed at 45 percent of non-profit hospitals.
Dan Weissmann, host of the podcast An Arm and A Leg and author of the new newsletter First Aid Kit, knows plenty about terrible billing practices in American healthcare. He shared this example with me: Threatening a patient who owes money with a ‘late fee’ of more than $1000, which isn’t exactly legal but would require the patient to hire a lawyer to fight it. (Among myriad other shady debt collection practices).
Not counting copay assistance towards a patient’s deductible.
Charging thousands of dollars for drugs that people need to stay alive.
This is to say nothing of the myriad other harms in the healthcare system that are a step removed from the costs to patients. It is still legal to let private equity chew up and spit out hospice and nursing home patients, or to be Andrew Cuomo, for example.
If you are insured, you can stop worrying that your next emergency hospital visit might result in a huge out-of-network bill; now that you’ve read all this, you’re prepared to fight if they try and pull any nonsense, too. Go ahead and take that fear off of the pile. As for the rest of it—well, that’ll have to wait. Ask again in another ten years.