Two brief issues--one good, the other bad--that occurred recently may be of interest to CUA members.

First, you may well recall that our governor decided last year that billing patients seen in the ER who had HMO insurance with a group you had no contract with was unfair to the patients.  Of course, he ignored the fact that the companies often failed to pay the urologist consultant for his time claiming the care was out of network, unauthorized or unnecessary.  He had no similar concern with fairness to the doctor.  Previously, such responses simply prompted the consultant to "balance bill" the patient directly.  Usually, when the HMO company received an irate complaint from their covered patient about a bill he received that the HMO had failed to pay, reimbursement to the doctor was quickly made.  Unfortunately, many patients were caught between the non-paying HMO and the doctor who had provided their care and they complained to the state.  Instead of the state mandating that HMO groups must pay physicians called in to see their patients in the ER fairly and promptly, they decided instead to forbid the doctors from billing the patient at all.  This year, the California Department of Managed Health Care issued a regulation (not legislation) that defined balance billing of patients seen in the ER as "unprofessional conduct" and forbade such activity.  They threatened to turn over any examples to the Medical Board of California for discipline.  However, current law does not give the DMHC such authority over physician billing practices.  Based on this, the CMA challenged this regulation in court. 

As the date arrived to make oral arguments, the DMHC backed off their insistence that such conduct would be prosecuted (acknowledging that they lacked sufficient standing under current law) but maintained that they did in fact have the right to pronounce balance billing "unprofessional conduct".  Unfortunately, while the judge has not officially ruled on their ability to punish such behavior, he has upheld their right to make the pronouncement.  This poses significant challenge to any urologist on call to the ER who sees patients insured by an HMO with whom he does not contract.  He is at the mercy and whim of the payer as to whether he will be paid, how much and when,  Obviously, this also removes any motivation for HMO payers to negotiate fairly with specialists since they know that any unplanned care delivered in the ER will still be paid at the limited rates specified in contracts which the specialist may have already rejected.  This comes about as close to indentured servitude as any action I've seen in quite a while. 

The CMA has plans to appeal this ruling but in the meantime, if you have ER backup responsibilities, you would be well served to limit billing to the HMO insurance company and not balance bill the patient under any circumstances.  I would suggest obtaining legal advice about whether to hold such bills planning to sue for unpaid fees in the future if and after this ruling is overturned.  You might make the patient aware of this potential for future action if you are planning it.  However, under no circumstances should treatment (in the ER or elsewhere) be refused on the basis of economic standing or ability to pay. After all, even while the insurance companies and HMOs are down in the dirt as far as their ethics and business practices, physicians have a moral and ethical duty to provide care even for those unable to pay.  Having said that, I know of no similar moral or ethical responsibility to make insurance companies and HMO groups wealthy at our expense.  We'll see how this plays out in future legal challenges.

On the bright side, a recent court decision overturned a policy that Medicare, for the past several years, has invoked that limits payment for various LHRH agents to what they consider the "least costly alternative."  That means, when two or more agents have similar outcomes, they may pay no more than the cost of the cheapest unless the physician can show good cause that the patient must have the more expensive treatment for bona fide medical reasons.  Even though many doctors have had patients sign Advanced Beneficiary Notices in order to provide and bill for the more expensive agent, this has caused urologists a great deal of difficulty.  Moreover, since payment is now based on Average Sales Price plus 6% (which often doesn't even cover our acquisition costs), the LCA policy is redundant.  A very strong judicial decision was handed down by Judge Henry H. Kennedy Jr. of the Federal District Court of Washington D.C. on October 16 that overturned this LCA policy.  After carefully reading the most recent Medicare law, he concluded that such a policy was not permitted.  Although the ruling was narrowly applied to a drug used for asthma, the principles involved are exactly the same as for LHRH agonists.  At the moment, it is not clear whether CMS plans to appeal the decision but they only have until the middle of December to do so.  Failing an appeal, the judgement stands.  Although it does not constitute case law and therefore is not precedent setting, the reasoning is so clear and forceful that there is no question but that similar challenges are soon to follow.  I personally have asked PPAC (the federal panel advising CMS on implementation of Congressional Medicare law) to question CMS representatives on how and when they plan to adjust other LCA policies but their response is not yet available as of the time this article is written.  While current LHRH agonist costs are too close to each other for this ruling to have an enormous impact, if a new agent comes on line that costs substantially less than currently available agonists but is unable to fill national demand, having had the LCA policy rescinded would be very important. It just goes to show that perseverance pays off.  We can only hope this applies to other disputes with payers and regulators.