Out-of-Network Payment Practices

NY Times Editorial, Published: April 7, 2009

There has been a justifiable cloud in recent years over the way the insurance industry decides how much to pay for the services of doctors who are outside a company’s network. The procedures are rendered suspect by conflicts of interest and look as if they have been manipulated to shortchange patients by hundreds of millions of dollars over the past decade.

A tough settlement negotiated between New York’s attorney general, Andrew Cuomo, and the UnitedHealth Group early this year will clean up much of the mess — not only in New York but in other states as well. Still, there are loose ends that need attention, so it is helpful that the Senate commerce committee has held two hearings to explore the need to expand and secure what Mr. Cuomo has achieved.

The hearings were a useful reminder of how badly the industry behaved in using a UnitedHealth subsidiary to calculate the “reasonable and customary” charges by physicians in a particular region. When patients leave the network, insurers typically pay about 70 percent of these charges and the patient pays the remaining 30 percent — plus any additional amount charged by a doctor above the supposedly reasonable charge.

Linda Lacewell, who led Mr. Cuomo’s investigation, testified that the industry engaged in fraudulent and deceptive practices to understate the “reasonable and customary” rate and thus keep its reimbursements low. Although the industry denies any such wrongdoing, UnitedHealth agreed to cough up $350 million to settle a class-action suit and agreed to shift responsibility for the calculations to an independent nonprofit organization. Eleven insurers, including some of the largest, have agreed to help finance the new database and use its findings wherever they operate.

That should go a long way toward cleaning up dubious practices, and New York is working on a new regulation to codify what insurers must do. But New York’s settlement won’t reach all insurers in all states. The Senate commerce committee will need to explore what further steps may be required to force insurers to use either the new database or some other measure that is reliable and free of conflicts of interest. All insurers should enable customers to determine, in advance, how much they will have to pay for services outside their network.

U.S. 'Not Getting What We Pay For'

Many Experts Say Health-Care System Inefficient, Wasteful

By Ceci Connolly
Washington Post Staff Writer
Sunday, November 30, 2008; A01

Talk to the chief executives of America's preeminent health-care institutions, and you might be surprised by what you hear: When it comes to medical care, the United States isn't getting its money's worth. Not even close.

"We're not getting what we pay for," says Denis Cortese, president and chief executive of the Mayo Clinic. "It's just that simple."

"Our health-care system is fraught with waste," says Gary Kaplan, chairman of Seattle's cutting-edge Virginia Mason Medical Center. As much as half of the $2.3 trillion spent today does nothing to improve health, he says.

Not only is American health care inefficient and wasteful, says Kaiser Permanente chief executive George Halvorson, much of it is dangerous.

Those harsh assessments illustrate the enormousness of the challenge that awaits President-elect Barack Obama, who campaigned on the promise to trim the average American family's health-care bill by $2,500 a year. Delivering on that pledge will not be easy, particularly at a time when the economic picture continues to worsen.

Senate Finance Committee Chairman Max Baucus (D-Mont.) has already warned that improving and expanding health care will cost money in the short run -- money that his Republican counterpart, Sen. Charles E. Grassley (Iowa), argues the government does not have.

Yet among physicians, insurers, academics and corporate executives from across the ideological spectrum, there is remarkably broad consensus on what ought to be done.

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One fundamental problem is how doctors are paid, he said. Under the current fee-for-service scheme, "the more you do, the more you make," Kaplan said. There is no incentive to keep people out of doctors' offices, hospitals, imaging centers and dialysis clinics.

More tests lead to more procedures, which often result in mistakes, complications, misdiagnoses or the use of untested therapies, said Donald Berwick, president of the Institute for Healthcare Improvement in Cambridge, Mass. "The current system is very hospital-centric," he said. "We wait for people to get sick, and then we invest enormous sums to fix them up. We should build primary care as the core."

It is possible to change the incentives, Kaplan said. Partnering with Starbucks and the insurer Aetna, Virginia Mason devised a new strategy for dealing with back pain, the leading medical complaint of Starbucks' coffee-pouring baristas. Virginia Mason made big money on MRIs, but there is little scientific data that the scans resolve the problem.

So they flipped the process, trying physical therapy first. To make up for some of Virginia Mason's lost revenue, Aetna increased its payment for the therapy. Today, the majority of Starbucks employees with back trouble return to work within 48 hours without an MRI or a prescription, Kaplan said.

"We've shown that you can have superior outcomes at lower costs," Kaplan bragged. He acknowledged, however, that the success on back pain is "one small vignette" in a mega-mess.

Moving from pricey, high-tech solutions such as MRIs to older, low-tech approaches such as physical therapy requires solid data and a culture change, said Helen Darling, president of the National Business Group on Health, which represents large employers. Americans are attracted to innovations, regardless of cost or whether they have been proven to achieve results.

A whole-body scan that is covered by insurance may seem like a bargain, Darling said. "But one way or another we're all paying" for it in higher premiums, increased government expenditures and even false-positive results that lead to more costly, invasive procedures.

Rush to Enact a Safety Rule Obama Opposes

By ROBERT PEAR

WASHINGTON — The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

With the economy tumbling and American troops fighting in Iraq and Afghanistan, President Bush has promised to cooperate with Mr. Obama to make the transition “as smooth as possible.” But that has not stopped his administration from trying, in its final days, to cement in place a diverse array of new regulations.

The Labor Department proposal is one of about 20 highly contentious rules the Bush administration is planning to issue in its final weeks. The rules deal with issues as diverse as abortion, auto safety and the environment.

One rule would make it easier to build power plants near national parks and wilderness areas. Another would reduce the role of federal wildlife scientists in deciding whether dams, highways and other projects pose a threat to endangered species.

Mr. Obama and his advisers have already signaled their wariness of last-minute efforts by the Bush administration to embed its policies into the Code of Federal Regulations, a collection of rules having the force of law. The advisers have also said that Mr. Obama plans to look at a number of executive orders issued by Mr. Bush.

A new president can unilaterally reverse executive orders issued by his predecessors, as Mr. Bush and President Bill Clinton did in selected cases. But it is much more difficult for a new president to revoke or alter final regulations put in place by a predecessor. A new administration must solicit public comment and supply “a reasoned analysis” for such changes, as if it were issuing a new rule, the Supreme Court has said.

As a senator and a presidential candidate, Mr. Obama sharply criticized the regulation of workplace hazards by the Bush administration.

In September, Mr. Obama and four other senators introduced a bill that would prohibit the Labor Department from issuing the rule it is now rushing to complete. He also signed a letter urging the department to scrap the proposal, saying it would “create serious obstacles to protecting workers from health hazards on the job.”

Administration officials said such concerns were based on a misunderstanding of the proposal.

“This proposal does not affect the substance or methodology of risk assessments, and it does not weaken any health standard,” said Leon R. Sequeira, the assistant secretary of labor for policy. The proposal, Mr. Sequeira said, would allow the department to “cast a wide net for the best available data before proposing a health standard.”

The Labor Department regulates occupational health hazards posed by a wide variety of substances like asbestos, benzene, cotton dust, formaldehyde, lead, vinyl chloride and blood-borne pathogens, including the virus that causes AIDS.

The department is constantly considering whether to take steps to protect workers against hazardous substances. Currently, it is assessing substances like silica, beryllium and diacetyl, a chemical that adds the buttery flavor to some types of microwave popcorn.

The proposal applies to two agencies in the Labor Department, the Occupational Safety and Health Administration and the Mine Safety and Health Administration.

Under the proposal, they would have to publish “advance notice of proposed rule-making,” soliciting public comment on studies, scientific information and data to be used in drafting a new rule. In some cases, OSHA has done that, but it is not required to do so.

The Bush administration and business groups said the rule would codify “best practices,” ensuring that health standards were based on the best available data and scientific information.

Randel K. Johnson, a vice president of the United States Chamber of Commerce, said his group “unequivocally supports” the proposal because it would give the public a better opportunity to comment on the science and data used by the government.

After a regulation is drafted and formally proposed, Mr. Johnson said, it is “all but impossible” to get OSHA to make significant changes.

“Risk assessment drives the entire process of regulation,” he said, and “courts almost always defer” to the agency’s assessments.

But critics say the additional step does nothing to protect workers.

“This rule is being pushed through by an administration that, for the last seven and a half years, has failed to set any new OSHA health rules to protect workers, except for one issued pursuant to a court order,” said Margaret M. Seminario, director of occupational safety and health for the A.F.L.-C.I.O.

Now, Ms. Seminario said, “the administration is rushing to lock in place requirements that would make it more difficult for the next administration to protect workers.”

She said the proposal could add two years to a rule-making process that often took eight years or more.

Representative George Miller, a California Democrat who is chairman of the House Committee on Education and Labor, said the proposal would “weaken future workplace safety regulations and slow their adoption.”

The proposal says that risk assessments should include industry-by-industry data on exposure to workplace substances. Administration officials acknowledged that such data did not always exist.

In their letter, Mr. Obama and other lawmakers said the Labor Department, instead of tinkering with risk-assessment procedures, should issue standards to protect workers against known hazards like silica and beryllium. The government has been working on a silica standard since 1997 and has listed it as a priority since 2002.

The timing of the proposal appears to violate a memorandum issued in early May by Joshua B. Bolten, the White House chief of staff.

“Except in extraordinary circumstances,” Mr. Bolten wrote, “regulations to be finalized in this administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than Nov. 1, 2008.”

The Labor Department has not cited any extraordinary circumstances for its proposal, which was published in the Federal Register on Aug. 29. Administration officials confirmed last week that the proposal was still on their regulatory agenda.

The Labor Department said the proposal affected “only internal agency procedures” for developing health standards. It cited one source of authority for the proposal: a general “housekeeping statute” that allows the head of a department to prescribe rules for the performance of its business.

The statute is derived from a law passed in 1789 to help George Washington get the government up and running.

The Labor Department rule is among many that federal agencies are poised to issue before Mr. Bush turns over the White House to Mr. Obama.

One rule would allow coal companies to dump rock and dirt from mountaintop mining operations into nearby streams and valleys. Another, issued last week by the Health and Human Services Department, gives states sweeping authority to charge higher co-payments for doctor’s visits, hospital care and prescription drugs provided to low-income people under Medicaid. The department is working on another rule to protect health care workers who refuse to perform abortions or other procedures on religious or moral grounds.