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Pro-doctors’ bill draws legal question

 By Christine Jordan Sexton

5/27/2009 © Health News Florida

The back-and-forth over a bill pushed by Florida's doctors may not end when Gov. Charlie Crist takes action.

The legislation, which would change the way doctors outside an insurer’s network are paid, could end up in court. A last-minute change in the bill could turn out to be a “poison-pill clause” that might render the bill unconstitutional.

Since the end of the 2009 session, lobbyists for Blue Cross & Blue Shield of Florida and several consumer groups have waged a fierce battle to persuade the governor to veto the bill (SB 1122).

The Florida Medical Association and other organizations of health care providers have sent hundreds of letters of support. This week, they’ll begin airing TV commercials in the Tallahassee market, said Jeff Scott, FMA general counsel and director of governmental affairs.

Crist, who has not yet received the bill, will have 15 days to veto the legislation, sign it into law or allow it to become law without his signature. If it does go into effect, it may face a legal challenge.

The clause in question would allow the law to be repealed in July 2012 if an official audit concludes that it’s having an adverse impact on state employees by raising the costs of their PPO plan or reducing the number of doctors offered in the network. Those concerns were raised during debate.

“It raises a constitutional issue,” said Tallahassee attorney Ron Meyer. He successfully challenged former Gov. Jeb Bush’s “opportunity scholarship” initiative, which would have allowed tax dollars to be used for private schools.

The Legislature often enacts “sunset” provisions, which set a certain date for statutes to expire if not renewed. The audit would be carried out by an arm of the legislature, the Office of Program Policy Analysis and Government Accountability (OPPAGA).

“A sunset is one thing,” said Meyer, who is with the Tallahassee law firm Meyer and Brooks. “Here, the Legislature is abdicating its decision-making …. I think that raises a constitutional question.”

Among Meyer’s clients are the American Federation of State, County and Municipal Employees and the Consumer Federation of the Southeast, both of which have asked Crist to veto the bill. However, Meyer said neither has spoken to him about pursuing a lawsuit if Crist signs it. 

Sen. Don Gaetz, R-Niceville and sponsor of the bill, said the proposed change was penned by Sen. Dave Aronberg, a Harvard-educated attorney unlikely to make such a mistake. Gaetz said he consulted with outside attorneys, as well, before accepting the change.

Gaetz, however, said he's not surprised that this issue is now coming up. "The next thing they will say is this causes male pattern baldness,'' he said.

This latest twist adds to the temperature in an already blistering fight over SB 1122, which essentially gives patients in PPO’s the right to tell their insurer to pay an out-of-network provider directly rather than send the check to the patient and leave it up to the patient to pay the provider. This practice is called “assignment of benefits.”

While some insurers honor assignment of benefits, Blue Cross & Blue Shield of Florida, which provides the network for the state employees’ self-insured PPO, doesn’t. When patients are treated by out-of-network providers, Blue Cross sends the check for payment to the patient, who then must use it to pay the provider, plus whatever extra is billed.

Amid the flurry of protests on the bill is a letter from Sean Shaw, Florida’s Insurance Consumer Advocate for Chief Financial Officer Alex Sink. Shaw asked Crist to veto the bill on the grounds that it encourages “balance-billing,” the practice of requiring patients to pay the difference between the insurer’s covered amount and the doctor’s charges.

Doctors who participate in an HMO or PPO network are not allowed by law to bill the plan’s patients for more money, beyond the co-payment required at the time of treatment. Doctors who aren’t in a plan’s network can’t balance-bill the patient if it’s an HMO under Florida law, but they can if it’s a PPO. Balance-billing is banned by the federal government in the Medicaid and Medicare programs.

All this can be confusing – sometimes financially devastating – for patients who don’t clearly distinguish between HMOs and PPOs, consumer advocates say.

“Instead of encouraging this practice, which this bill does,” Shaw wrote in his letter, “the Legislature should prohibit this practice altogether.”

Shaw offered an example of a Florida man who sought his office’s assistance in dealing with more than $13,000 in medical bills that were sent after his son had a medical emergency and was air-lifted to the hospital for surgery.

The hospital was in the man’s PPO network, but the air ambulance was not. The plan paid the company $4,000 but billed the family another $8,000.

The anesthesiologists also weren’t in the PPO network. The plan paid them nearly $13,400 but they billed the family another $5,170.

“There was nothing that we could do for this consumer,” Shaw said in his letter. “(He) was on the hook for over $13,000.”
But there’s another side to the argument, says Christopher Crosby, CEO of Watershed addiction center in Palm Beach County. Health-care providers often are “squeezed,” he said, and the amount an insurer is willing to pay for care isn’t always appropriate.

Consumers who enroll in a PPO plan pay more because it gives them the freedom of choice to go to providers outside the network, Crosby said. So why should Blue Cross try to kill a bill that allows customers to use the freedom-of-choice they’re paying for? That’s “really upside down,” he said.
The FMA’s Scott says Shaw’s missing the point. SB 1122 isn’t about balance-billing, Scott said, but about honoring patients’ decision to have providers get paid directly by the insurance company.

Scott said Shaw’s letter shows “he’s obviously got a burr up his saddle about balance billing.”