Action for Health Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Oct. 23 -- Christopher G. Sheeron, president of Action for Health, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement". The comment was written on Oct. 18, 2021, and posted on Oct. 19, 2021:

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Thank you for this opportunity to submit our comments on "Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement" (CMS-9907-P)./1

We hope you find them helpful. On June 30, September 1, and September 7, Action for Health submitted three initial sets of recommendations regarding the regulatory implementation of the No Surprises Act, including in response to "Requirements Related to Surprise Billing; Part I". The following public comments to the Office of Personnel Management (OPM), the Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and the Department of Health and Human Services (HHS) highlight several concerns we have with this Proposed Rule.

Introduction

Action for Health/2 is a national, non-profit patient advocacy organization. In all our work, we attempt to educate policymakers, the media, and concerned citizens about critical healthcare issues. One of our main focuses at present is ensuring the fair implementation of the No Surprises Act, legislation enacted last year/3 that, as you know well, eliminates surprise medical bills for patients and promulgates an independent dispute resolution (IDR) process for health insurance plans and physicians to settle out-of-network (OON) payment disputes. We have been working diligently on the broader issue of surprise medical bills for the past two and a half years.

Areas of Concern

For the following comments, we highlight four (4) areas of concern.

1.) Biased "Evidence"

We continue to be alarmed by the fact that the agencies that have written this Proposed Rule appear to parrot health insurance industry talking points. The overriding notion that the minuscule rates (i.e., median or in-network) health insurance plans concoct - which are not based in reality nor the actual healthcare marketplace - are fair rates, and that physicians, hospitals, and other providers who do not accept these rates are just profiteering at the expense of patients and health insurance plans, is preposterous.

For example, the Proposed Rule cites the USC-Brookings Schaffer Initiative for Health Policy./4

As we have highlighted constantly over the past several years, this initiative is funded by Leonard Schaeffer, the founding chairman and CEO of WellPoint, which is now Anthem. The initiative's research is without question commissioned and overseen by large health insurance interests to the direct detriment of patients.

This Proposed Rule also starts by citing Dr. Zack Cooper,/5 an associate professor of public health and of economics at Yale University. As an explosive expose6 detailed this past summer, Dr. Cooper discreetly partners with UnitedHealthcare, the nation's largest health insurance company, to influence laws and regulations in the corporation's favor.

Regulators must awake to - and openly acknowledge - these facts.

2.) Appropriate Fees

Regarding what an appropriate fee would be for OON ambulance services, the agencies appear to be interested in examining what other OON ambulances charge, what other OON ambulance providers are paid, and the administrative costs associated with such OON ambulances.

In this light, it is hoped that agencies allow the accredited IDR entities stipulated in the Part II regulations for this law to give similar consideration for appropriate fees for OON physicians.

3.) Penalties

In this Proposed Rule, the agencies have created a massive penalty fee structure for each instance of violation by a provider. The proposed non-compliance penalty in this regulation for a provider is up to $10,000 per Public Health Service (PHS) Act violation./7

However, we did not find a single instance in this ruling that lists any specific penalty for each instance of violation by a health insurance plan. This is a textbook definition of unfair.

4.) Helping Patients

The agencies sadly seem eager to investigate all aspects of the health insurance issuance process that might contribute to the problem of surprise medical bills - except for the most obvious one: gigantic, monopolistic insurance companies.

The insurance cartel offers patients just one way to reduce their annual premiums, namely by either accepting no OON benefits for physicians or accepting extremely poor OON benefits, such as payments tied to Medicare. Patients could be given hundreds of ways to reduce their premiums besides agreeing to a provision that they must see contracted (i.e., in-network) physicians and that their physicians will only receive a diminutive payment for their services.

This health insurance industry-backed scheme is driving independent physicians out of business and causing massive consolidation in our healthcare system. This consolidation is the real driver of higher healthcare costs./8

Conclusion

Thank you again for this opportunity to provide you these comments on this Proposed Rule. In the weeks and months ahead, we also will be providing further comments on Part II of these No Surprises Act regulations.

Unfortunately, the second interim final rule (IFR)/9 includes language that completely skews the law's IDR process in favor of health insurance plans. On behalf of patients nationwide, we will be not only sounding the alarm on how regulatory agencies blatantly ignored Congressional intent by pre-weighting the qualifying payment amount (QPA), but also offering the steps necessary to fix these critical IDR provisions.

If we can be of any help to you or your staff with this regulatory process throughout the remainder of the year, please do not hesitate to contact me directly at (202) 823-2333.

Sincerely,

Christopher G. Sheeron

President

Action for Health

Cc: Ms. Padma Babubhai Shah, Office of Personnel Management

Mr. Matthew Meidell, Employee Benefits Security Administration, Department of Labor

Ms. Kari DiCecco, Internal Revenue Service, Department of the Treasury

Ms. Pinar Shapiro, Employee Benefits Security Administration, Department of Labor

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Footnotes:

1/ Office of Personnel Management, Internal Revenue Service, Employee Benefits Security Administration, Department of Health and Human Services, Proposed Rule, Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement, CMS-9907-P, September 16, 2021, accessed: https://www.federalregister.gov/documents/2021/09/16/2021-19797/requirements-related-to-air-ambulanceservices-agent-and-broker-disclosures-and-provider-enforcement#open-comment.

2/ Action for Health, www.action4health.org.

3/ H.R. 133, Consolidated Appropriations Act (CAA), 2021, (P.L. 116-260), December 27, 2020, accessed: https://www.congress.gov/bill/116th-congress/house-bill/133/text.

4/ Federal Register, Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement, pg. 38, accessed: https://www.govinfo.gov/content/pkg/FR-2021-09-16/pdf/2021-19797.pdf.

5/ Ibid., pg. 4.

6/ Adams, Rose, "UnitedHealthcare Guided Yale's Groundbreaking Surprise Billing Study", The Intercept, August 10, 2021, accessed: https://theintercept.com/2021/08/10/unitedhealthcare-yale-surprise-billing-study.

7/ Federal Register, Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement, pg. 37, accessed: https://www.govinfo.gov/content/pkg/FR-2021-09-16/pdf/2021-19797.pdf.

8/ See U.S. House Judiciary Committee Statement for the Record from Action for Health for additional perspectives on consolidation and cost increases, May 5, 2021, accessed: https://docs.house.gov/meetings/JU/JU05/20210429/112518/HHRG-117-JU05-20210429-SD009.pdf.

9/ Office of Personnel Management; Internal Revenue Service, Department of the Treasury; Employee Benefits Security Administration, Department of Labor; Centers for Medicare & Medicaid Services, Department of Health and Human Services, Requirements Related to Surprise Billing; Part II, Interim Final Rule, October 7, 2021, accessed: https://www.federalregister.gov/documents/2021/10/07/2021-21441/requirements-related-tosurprise-billing-part-ii.

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The proposed rule can be viewed at: https://www.regulations.gov/document/CMS-2021-0147-0001

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