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The Nevada Independent

Insurers, providers inch closer to compromise on surprise emergency room bills

Megan Messerly
Megan Messerly
Health CareLegislature

The greatest fear Americans have when it comes to affording the costs of their medical care? Surprise medical bills.

They’re the bills patients receive after they’re transported by ambulance to a hospital — sometimes unconscious or in critical condition — that is out of their insurance company’s network. They’re also the bills patients receive when they land in an emergency room that contracts with their insurance company but are inadvertently treated by a doctor that doesn’t.

A poll by the Kaiser Family Foundation in September found that 67 percent of people worry about surprise medical bills — more than the number of people who worry about the cost of insurance deductibles, prescription drug costs or other basic life essentials, including rent, food and gas.

In an emergency situation, paramedics don’t stop to check patients’ insurance cards before rushing them to the hospital, nor do patients pause to question whether every doctor treating them in the emergency room is part of their insurance plan’s network.

Hospitals, physicians and insurance companies in Nevada have agreed that patients experiencing a true emergency shouldn’t have to worry about whether they’re receiving in-network care — or face bills totaling tens of thousands of dollars if they accidentally wind up out of network just because their provider and insurer don’t have a contract. Where there has historically been less agreement, though, is what to do about it.

Lawmakers are poised to again take up surprise emergency room billing this session, an issue the Legislature has wrestled with for two decades. But hospitals, physicians and insurers are hopeful they will be able to reach consensus this year on legislation that “takes the patient out of the middle” — an oft-used phrase in the surprise billing debate — while establishing a fair compromise between payers and payees.

“I would say that we’re in a better position today than we have been in the past,” said Bill Welch, CEO of the Nevada Hospital Association. “This is the first time in the 20 years that I’ve been doing this that I’ve seen the focused effort during the interim to try to bring a resolution.”

Those in the health-care industry are also encouraged that there appears to be the political will to tackle the issue from the highest echelon of the state. Gov. Steve Sisolak made surprise billing a focus of his health-care platform during the campaign and told reporters last month that he has been talking with legislative leadership about the issue.

“You’ve got people who are sick to begin with and they get a letter in the mail and open it up and fall off their chair. We’ve got to do something with that,” Sisolak told reporters after a health-care roundtable in December. “It’s definitely a priority for us.”

2017 vs. 2019

The debate over surprise billing most recently came to a head during the 2017 legislative session. Lawmakers passed and Gov. Brian Sandoval vetoed a bill that would have required payers and payees to agree on a “reasonable” rate for out-of-network services provided or else take the matter to binding arbitration. In his veto message, Sandoval said that the legislation would have forced hospitals and physicians to accept below-market rates for out-of-network care or take thousands of cases a year to mediation.

Lawmakers also gave their first stamp of approval last session to a proposed constitutional amendment that would bar hospitals from charging more than 150 percent of federal Medicare rates for emergency out-of-network care. The hospitals balked at the proposal, saying it would make it difficult for hospitals to keep their doors open and threatening that hospitals would close as a result of it.

Both measures will return to the Legislature for consideration this year — the bill because it was vetoed after the end of the 2017 session, meaning lawmakers could override the veto with a two-thirds vote in both houses, and the amendment, because it needs a second vote of approval from the Legislature before it can go to a vote of the people. But among those in the health-care industry — including the doctors and hospitals, which largely played defense on the issue last session — there appears to be an appetite for an alternative solution.

For the last year, Democratic Assemblyman Mike Sprinkle has helmed a working group including the various payers — commercial insurance companies, such as UnitedHealthcare and Anthem, and self-funded plans, such as the Culinary Health Fund and other Health Services Coalition members — and payees, namely hospitals and doctors.

Insurers, doctors and hospitals credit the group with getting the interested parties in the same room to talk about the issue in the interim — away from the immediacy of discussions that happen during the legislative session.

“Everyone agrees it’s a problem,” said Bobbette Bond, director of public policy at the Culinary Health Fund. “The positive work is that there’s been a lot of discussion.”

Out of the working group, Sprinkle said he has submitted a bill draft request that includes points of consensus on which the group was able to agree, though they still have yet to settle on a formula for determining how much insurance companies should pay out-of-network hospitals and doctors for emergency care. He said the group had been meeting twice a month over the last few months but was unable to reach final compromise language before a Dec. 10 bill draft request deadline.

“In the end, we got a lot accomplished, but we still ultimately didn’t have one consensus piece of legislation,” Sprinkle said. “As soon as this bill comes out, as soon as we see the language, I’ll reconstitute the working group and we’ll continue to work through the remaining issues.”

One of the key points of consensus included in the bill draft request, Sprinkle said, is that patients who receive emergency care will only be responsible for whatever costs their insurance plan would normally require them to pay for in-network treatment even if the hospital or the treating physician is out of network.

“The concept is that regardless of what hospital emergency room an individual ends up in, if it’s out of network, the individual will only be responsible for their insurance plan requirements,” Sprinkle said. “They pay their premium and whatever their copays, deductibles, that sort of thing that are part of their plan. That’s the only thing they will be responsible for.”

Welch, the head of the hospital association, echoed the point.

"The patient will be responsible for no more than what their in network copay would have been,” Welch said. “The hospital and provider, based upon the agreed upon payment resolution, will be satisfied with that as a resolution to the outstanding bill."

Sprinkle said that the bill will also create a system for transferring patients from an out-of-network hospital to an in-network hospital once they are stable, specifying exactly what it means for a patient to be stable and establishing a window for hospitals to notify patients’ insurance companies that they are in an out-of-network hospital.

Members of the working group added that they agreed the proposal would only apply to Nevada residents insured by Nevada insurance companies and to those experiencing an emergency.

“One of the things we really stressed is it needs to be the prudent layperson standard of an emergency — you think you’re having a heart attack and it ends up being indigestion,” said Catherine O’Mara, executive director of the Nevada State Medical Association.

The legislation will also only apply to patients from the time they enter the emergency room until they reach stability, meaning that it won’t address any pre-hospital care received in an ambulance or helicopter or any post-emergency room care, such as if a patient is transferred to an intensive care unit bed, Sprinkle said.

In his bill draft request, Sprinkle is also recommending the creation of a commission appointed by the governor and legislative leaders to research health-care costs and compile an annual report. He said that the commission will also be responsible for resolving any impasses between insurance companies and providers, though he is still trying to determine the exact scope of the commission.

Welch said that the hospital association is “very supportive” of a state oversight committee to review out-of-network cases.

“For every case that’s resolved through this mechanism for out of network, we believe there should be a study done and a report produced as to what types of cases they were, the frequency, and what caused it, so that we can look at what’s causing an individual to be out of network so we can look at long term solutions,” Welch said.

The sticking point — which has long been the sticking point on this issue — is how much insurance companies should be required to compensate hospitals and doctors for providing out-of-network care to patients. Insurance companies have historically argued that hospitals set their billed charges for services too high, while hospitals argue they get short shrift from insurance companies for out-of-network care.

Sprinkle said that he included placeholder language in his bill draft request for how hospitals and doctors should be compensated for out-of-network care, though he stressed it is only a starting point for ongoing conversations. The bill draft request will call for doctors to be reimbursed in accordance with benchmarked standards established by a database from a nonprofit company, such as FAIR Health, while hospitals would be reimbursed at 325 percent of Medicare, Sprinkle said.

“That’s part of where we’re still negotiating and working on through the task force,” Sprinkle said. “We will ultimately need to come up with specific rate structures simply because if we don’t we’re still left in limbo for those 2, 3 or 4 percent of cases that just can’t be negotiated. We will come up with something.”

It is unclear whether an arbitrator will be part of the final proposal or not, something payees have expressed concerns over due to the financial burden of taking case after case to arbitration. Sprinkle said that if the doctors, hospitals and physicians are able to agree on rates, the bill may not need an arbitration provision.

“Maybe with this actually being in legislation that then will allow the insurance companies and the providers to reach some sort of negotiation and there may not be any need at all for an arbitrator,” Sprinkle said.

O’Mara said doctors have yet to reach an agreement with insurers over the payment metric, though doctors support basing payment off of the FAIR Health database. She said that doctors have opposed a separate proposal to use the insurer’s average contracted rate, which could incentivize insurers to drop their contract rates.

“It’s hard because I don’t know that we’re going to reach consensus on the payment metric,” O’Mara said. “

Welch, the head of the hospital association, said insurance companies and the hospitals have been meeting privately and are “only a couple percentage points away” from reaching a solution over the rates, though he declined to name any numbers citing the ongoing negotiations. However, he said he hopes to schedule a meeting over a counterproposal to rates proposed by the insurance companies as soon as next week.

Welch said hospitals and insurers are looking at a two category structure for rates, one that would apply to hospitals and insurers who have had contracts in the past and incentivize the parties to renegotiate contracts with one another with a two-year sliding scale, and another that would apply to those that are outside of the two-year contract window or have never contracted in the past. The rates for the first category would be based off of past contracts, while the rates for the second would be determined based off of the company’s other existing contracts, Welch said.

“We’re not there yet, but it’s our hope that we will still get there before the legislative session convenes so we can meet with the Assembly leadership and present to them together — the payers and the hospitals — what we did agree to do,” Welch said.

The two major commercial insurance companies in Nevada — UnitedHealthcare and Anthem — were scant on details as far as their perspectives on the work accomplished by the working group but reiterated their commitment to the process in statements to The Nevada Independent.

Anthem said that it is “committed to working with legislators, hospitals and other stakeholders to find a solution to the surprise ER billing issue and looks forward to continuing our collaborative efforts to protect affordability for consumers.” UnitedHealthcare noted that surprise medical bills “create a financial hardship for the most vulnerable Nevadans” and said that the company supports efforts by lawmakers “to protect Nevadans from surprise bills and will work with them to find the best solution.”

Bond, on behalf of the Culinary Health Fund, said she believes that the groups are “close” to reaching a compromise.

“I don’t know if we’re exact,” she said. “But we’re a lot closer than we were during the legislative session.”

Other proposals

Democratic Assemblywoman Maggie Carlton, who has been working on the issue for more than a decade and sponsored the bill and the constitutional amendment last session, said she plans to reintroduce the bill that was vetoed last session as a starting point for ongoing conversations. While she has not been involved with the working group, she said “the more people working on this the better.”

“As long as we can come up with something that protects the patient, I don’t care if my name’s on it. I don’t care whose name is on it,” Carlton said. “There’s no pride of ownership, there’s just the idea that we need to protect people.”

Carlton added that she is interested in exploring whether Nevada could establish a commission responsible for reviewing health-care rates as Maryland has done. She said the commission would essentially be the health-care version of the Public Utilities Commission, which regulates energy rates in the state.

“I’m not sure if it’s perfect for Nevada, but why recreate the wheel?” Carlton said. “Honestly if we can’t do it legislatively, maybe we need to do it regulatorily. Maybe that’s the way to go is a regulatory body that oversees this and just have the Legislature set that up along with what we do with energy to protect the public. If we can’t seem to come up with something statutorily maybe that’s the option we need to look at. I don’t know, but we should put it on the table.”

She added that the constitutional amendment will return this session but that she’s not sure exactly how it would evolve as the Legislature continues to tackle the surprise billing issue.

“We’re going to have more conversations about it, but it has kept people motivated at the table to work on a solution,” Carlton said.

Republican Sen. Joe Hardy, a doctor by trade, has also submitted a bill draft request based on model legislation put forward by the National Council of Insurance Legislators requiring insurance companies to pay at least 80 percent of a "usual and customary rate" as determined by a benchmark from a nonprofit organization, such as FAIR Health.

“I think it’s a problem that needs fixing, and the fixing is probably going to be through debate in the Legislature irrespective of whatever other groups there are,” Hardy said. “So I think we’re going to throw spaghetti against the wall and see what sticks.”


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