by Tina Reed | Jun 26, 2019 7:10am
As
Senate lawmakers plan to mark up a sweeping piece of legislation aimed
in part at curbing surprise bills, healthcare experts say the solutions before
them could ultimately create some tricky entanglements for hospitals.
Among
the potential speed bumps: corporate practice of medical laws.
In a nutshell,
those laws bar corporations from directly employing physicians to
ensure physicians work in the best interests of their patients. The laws differ
from state to state, but in some places the laws block doctors from being
directly employed by hospitals. That is why so many hospitals rely on
contracted physicians within their walls.
But several
proposals in Congress, including the Lower Health Care Costs Act to
be examined by the Senate Health, Education, Labor and Pensions Committee
Wednesday, include network-matching requirements—which would require
facility-based practitioners to contract with every plan for which every
hospital has a contract.
Therein
lies the rub, said Susan Feigin Harris, a partner at Morgan, Lewis
& Bockius.
"The
hospital can’t mandate that someone who is not employed by them contract with
anyone," the healthcare lawyer said. "They also can’t mandate they
get paid a certain amount because they don’t have any control over what the
salary or payment is for a physician. Those physicians are in physician groups.
It is a separate corporate entity."
The
goal is to reduce the surprise bills that can occur when a patient is
provided with services by an out-of-network provider in an in-network
facility. But the idea of network-matching challenges the very idea of
networks and managed care, she said.
"There
will be consequences as a result of that. Everyone is going to have to
figure out to make that work within the confines of the law," she said.
"They are conceptually setting a rate and, in essence, are saying:
‘You and I, as consumers, we really can go anywhere because we’re not going to
be hit with a surprise bill in certain circumstances.'
"In
certain circumstances, there is no network. You need to go where you need to go
and here is the price that is going to be paid as a result," she said.
"That eliminates the incentive to go in-network. It’s done for the
right reasons with respect to emergency care and other circumstances. But
you’re eliminating the concept of a network."
The
idea, as well as the idea of benchmarking rates, has been a non-starter for officials from the
American Hospital Association (AHA) and other hospital groups who have
said they hamstring providers' ability to negotiate their rates with
insurers. "Once the patient is protected, providers and
payers should be able to determine fair and appropriate reimbursement,"
testified Tom Nickels, AHA executive vice president, at a recent
hearing. “We believe health plans should not be absolved of their core
function of establishing provider networks and negotiating rates with
providers.”
It also
creates a tricky logistical situation for hospitals, Feigin Harris said.
"All
of us who are healthcare lawyers who work with facilities would have to look
really carefully at what are the ways that are legal for hospitals to bind a
group of physicians to a contract. It’s complicated because there are
limitations on any kind of incentive hospitals would offer
physicians," Feigin Harris said. "It all has to be done
very carefully in consideration of a number of laws. It may be a little bit
more difficult. The easiest thing would be to eliminate corporate
practice."
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