by Steve Haner
The arguments which have paralyzed Virginia General Assembly efforts to end surprise bills from medical providers are surfacing again in comments to the State Corporation Commission. It is considering an internally generated regulation that requires advance consent from patients to be treated by someone outside their approved health plan.
As proposed in June and reported by the Richmond Times-Dispatch, the regulation addresses only elective medical procedures, not emergencies. It is tied to legislation which passed in 2019 that requires written notice to patients of the possibility some provider on their care team might be “out of network” and thus send them a separate bill outside their insurance contract.
Does the proposed regulation (at the end of this document) implement that action by the General Assembly, or does it go beyond what the legislature approved? If the latter, is the SCC allowed to take this regulatory step? The hospitals, doctors and other providers lining up in opposition say the SCC would be exceeding its authority.
The growing written record (here) will be supplemented by a hearing on September 12. The regulation was proposed for an October 1 effective date, but even supporters in their comments are picking at the details and suggesting amendments. The outcome may be another of those well-intentioned stakeholder groups that have bogged down previous attempts to restrict this practice.
As is noted in the comments filed by attorney Bill Hurd for the Virginia Hospital and Healthcare Association, nine bills were introduced at the 2019 General Assembly on this session and one passed. Hurd goes on to complain that the SCC is seeking to re-write the General Assembly outcome in three ways:
“First, the Proposed Rules would substantially change the notice requirements contained in the Statute. Second, unlike the Statute, the Proposed Rules would require facilities to keep track of network-related information about individual patients. Third, unlike the Statute, the Proposed Rules would require facilities to pay for out-of-network services in certain situations.”
Hurd’s third point refers to the enforcement mechanism in the proposed SCC regulation. If the facility (usually a hospital or out-patient center) fails to get the required approvals, it might have to pay the bill for an out-of-network provider.
Other comments from opponents, perhaps unwittingly, point out how the new law is rather feckless on its own. Writes Sara Heisler of OrthoVirginia, Inc.:
“The new Code Section 38.2-3445.1 requires a facility providing elective services to post a required notice or inform a covered person of the required notice. That’s it. It does not require provider contracts to contain certain language, it does not require the facility to obtain written consent from the covered person, it does not require the covered person to choose between in-network providers and out-of-network providers, and it does not require a facility to be financially responsible for out-of-network services. If the General Assembly had wanted these requirements to be applied to facilities and health carriers, it would have included these requirements in the statute.”
“The statutory “required notice” can be accomplished through “posting” a sign, a flyer, or other preprinted, standard language,”
writes John B. Mumford on behalf of the Medical Society of Virginia. He said it is then up to the patient to check with the health insurer to see which providers are in or out of network. The health plans are off the hook in the new regulation, he asserts:
“The Proposed Rules place the entire information burden on facilities. Health plans, the regulated entities under Title 38.2, have no incentive under the Proposed Rules to provide facilities with correct or complete information, and suffer no consequence if they fail to provide information necessary for a facility to make the individualized determinations required…”
In their comments, most of them merely email messages rather than lawyer letters, the health plans are generally supportive of the Bureau of Insurance proposal. Again, they add many suggestions that will prevent quick adoption of anything. Doug Gray of the Virginia Association of Health Plans wants more controls imposed on the facilities. He writes:
“….we are concerned the notification language as written will not provide consumers a choice. Facilities will try to steer patients to using a non-network provider and accepting these inflated charges, or facilities will claim there are no in-network providers and refer patients to another facility. We suggest the regulation be amended to ensure facilities give consumers a choice between using only in-network providers or the potential of having a non-network provider.”
Support for the proposal – and for the SCC’s authority over this matter — was also provided in comments from the Virginia Poverty Law Center (with its own four proposed amendments) and Senior Assistant Attorney General Meade Browder, head of the section charged with consumer advocacy.
One major provider, nationwide lab services company Quest Diagnostics, jumped in to ask the SCC to clarify that the proposed regulation would not apply to it at all. It usually never sees any patient, only the tissue or fluid sample sent by the hospital or doctors for evaluation.
“Although we feel strongly that the rule and statute clearly do not require out of network laboratories to provide notice and obtain consent, to ensure complete clarity, we recommend that Section A be amended to include language confirming that the notice and consent requirement applies to scenarios in which an in-network facility refers a patient to an out-of-network provider.”
A patient’s blood is not the patient? The firm may get some clarification it doesn’t desire.
The advice at the General Assembly is: Don’t try to write a bill on the floor. The same may be true of efforts to write regulations in a court room. But this issue infuriates people when they get caught up by it, all the parties demonstrate greed and pass the blame, the General Assembly has failed to settle on meaningful reforms, and the SCC’s Bureau of Insurance is trying to fill a vacuum. When Medicare for All comes, consumer fury over issues like these will be the reason.
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