PHI Health Issues Public Comment on DOT Notice

WASHINGTON, June 28 -- Christopher Hall, director for government affairs & industry relations at PHI Health LLC., Phoenix, Arizona, has issued a public comment on the Department of Transportation notice entitled "Meetings: Air Ambulance and Patient Billing Advisory Committee Matters". The comment was written on June 23, 2021, and posted on June 24, 2021:

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PHI Health, LLC. greatly appreciates the work of the Department of Transportation and the Department of Health & Human Services in carrying forward the work of the DOT-HHS Air Ambulance Patient Billing Advisory Committee. We thank you for your work to support and guide the Advisory Committee within the scope of the AAPBAC charter, as the committee and subcommittee members reviewed the subject matters and crafted the recommendations considered by the plenary committee. In response to items discussed and actions taken on May 27 and 28, we offer this follow up information and comments. We thank you for giving these the attention needed for a thoughtful review.

1. Request confirmation that DOT has the authority to compel data collection from hospital-based air ambulance services that contract with Part 135 certificated air carriers for aviation services, as indirect air carriers:

As DOT works to finalize committee recommendations, we ask that the DOT clarify its role and its statutory authority to collect data from hospital-based air ambulance services. Based on comments made by DOT in the May 27 AAPBAC meeting, it is our understanding that DOT could compel data collection from this category of air ambulance services, as a function of their status as indirect air carriers. We ask that the DOT include specific language that provides this clarity, as a means of creating a comprehensive and accurate data set.

2. HHS should specify initial payment in the NSA that uses the median of in-network and out-of-network historical payments:

After considerable committee member discussion regarding the statutory authority of HHS to require an initial payment for air ambulances, the committee failed to support a recommendation. However, throughout the meeting, much of the discussion included consideration of alignment of recommendations with the No Surprises Act.

The NSA requires that the "Tri-Departments" (HHS, Labor, and Treasury) conduct a rulemaking to determine a methodology for determining a "Qualifying Payment Amount." To that end, we urge HHS to not simply rely upon the median of in-network rates for air ambulances to determine an appropriate and sufficient initial payment. We respectfully ask that HHS give full consideration to the fact that this median is too easily skewed downward by in-network rates for loss-leader hospital-based air ambulance services (which are overcome by in-patient revenue). This is especially important for the IDR process established by the NSA, as the considerations in determining which offer is the correct payment amount need to be expanded to include the extent to which subsidies have influenced the median in-network rate.

We also ask that the Tri-Departments acknowledge the silent, but powerful effects of using Medicare rates as a benchmark for in-network contracts. The continued use of Medicare rates as a reference by insurers in network negotiations contributes to a deflated valuation of air ambulance services. Reimbursement from Medicare, Medicaid, and other government payers is more than 40% less than the cost of providing the service. This results in a significant amount of under-compensated care that must be offset. Historical out-of-network payment data is essential to understanding how historical out-of-network commercial insurance reimbursement provides funding that mitigates the under-compensation by government payers. Of the 10-30% of air ambulance patients transported that are commercially insured, it is our experience that only 30% of those patients have plans with network agreements (despite our efforts to improve network participation). To put this in real terms, out of 10 patients transported, less than two may be in-network. Relying on a median of in-network agreements gives disproportionate weight to this very small number of claims and disregards the financial realities that air ambulance services face. To correct this, we urge HHS to consider the median of historical in-and out-of-network payments for air ambulances as a basis for determining an initial payment to air ambulances for reimbursement for emergency medical transport.

Lastly, we urge HHS to be cautious in consideration of existing databases in areas where insufficient data exists. It is our experience that the dominant databases (e.g., HCCI and FairHealth) rely primarily on hospitals and health systems, which may skew consideration of an initial payment towards a level that is sufficient for a subsidized service, but not for a rural, nonsubsidized air ambulance provider.

3. Process:

PHI Health is gravely concerned by the recent decision by DOT that will allow consideration of recommendations related to revising the Airline Deregulation Act (ADA), which reverses previous committee guidance and specific direction that revision of the ADA was out-of-bounds. The last minute action by plenary committee members with histories of longstanding and outspoken public calls to revise ADA (and disrupt uniform DOT oversight) should have been disregarded by the DOT.

In response to the questions from some plenary committee members regarding the scope of the AAPBAC charter (and the potential for inclusion of consideration of revision of the Airline Deregulation Act) during the January 2020 AAPBAC meeting, the DOT responded with clear direction that the AAPBAC charter included making "recommendations to the Secretary with respect to steps that can be taken by State legislatures, State insurance regulators, State attorneys general, and other State officials as appropriate, consistent with current legal authorities regarding consumer protection." [emphasis added]. It was with this understanding, and with reminders during the subcommittee discussions, that subcommittee members considered the issues and made recommendations. It is troubling that the DOT has reversed previous guidance as a result of a last-minute effort to include a recommendation to Congress that revision of the ADA be considered. We are further dismayed that plenary committee members went so far as to interrupt the DOT's Designated Federal Officer to call for a voice vote of members on this issue. We urge the DOT to disregard any recommendation that would erode uniform DOT economic and operational oversight of certificated air carriers.

PHI Health is disappointed that, when reviewing the committee's votes on a recommendation related to establishing an IDR process, plenary committee members were allowed to change content and context and to revise their vote, effectively creating a "do-over" situation that eroded two days of good faith efforts and months of preparatory meetings and subcommittee member effort to find agreement on recommendations.

PHI Health appreciates the efforts of the DOT to ensure clarity by performing a review of the recommendations from each day. However, we are disappointed that, at the end of a long second day, the DOT allowed for a substantive revision of a previously supported recommendation and a reconsideration of votes. In doing so, the DOT allowed for an adopted recommendation for an Independent Dispute Resolution process (which is consistent with the NSA IDR process), to be overturned and discarded. This action erodes two days of thoughtful consideration of subcommittee recommendations, for which most had consensus, and in a small handful of cases, majority support. Allowing committee members to reconsider the vote and revise the substance of recommendations, after the fact, disturbed settled issues and cast a shadow on an otherwise thorough and meaningful review and discussion of air ambulances.

PHI Health is hopeful that the information shared in follow up is helpful in your efforts to draft the final recommendations and in your consideration of harmonizing committee recommendations with the rulemaking of the NSA. We also urge the DOT to take proper action to ensure that the good work of the committee and its members is not distorted by the actions of those who chose to disregard the scope of the AAPBAC charter in a misguided attempt to disrupt forty years of uniform DOT economic and aviation oversight of air carriers.

Sincerely,

Christopher Hall

Director, Government Affairs & Industry Relations

email: [email protected]

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The notice can be viewed at: https://www.regulations.gov/document/DOT-OST-2018-0206-0027

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