Rise and Shine: Employment-Based Health Benefits in a Post-COVID Future By: Ron E. Peck, Esq. It is a summer day in August. The year is 2020. I dropped my son off at daycare this morning. I feel guilt, fear and anxiety over having done so. That is not how I felt upon doing so in August of 2019. What has changed? We are busy enduring COVID-19; a pandemic the likes of which the United States has not seen in one hundred years. COVID-19 has caused a ripple effect, felt by almost every facet of our modern society. From retail and food services, to ride sharing and travel. Tourism, education, and of course – health care. One would reasonably assume that, when discussing a pandemic and health care, the natural direction in which we would head next would be a discussion regarding the health impact – present and future – of COVID-19. The treatment options, the cost of said treatment, as well as short-term and long-term impact of the disease on patients. Yet, here I will not attempt to dissect the clinical issues presented by coronavirus, and the immediate, direct impact it will have on our health benefit plans, and self-funded plan sponsors. Instead, I will be discussing a threat to our industry not called COVID-19, but rather, a growing sociopolitical threat that has emerged in response to a larger economic victim of the virus. As retail and restaurants have closed shop – for many, permanently; as businesses have had to suddenly adjust to a “work-from-home” environment – for many, without success; as an economy that was thriving has suddenly been thrust into a recession – so suddenly you would be forgiven for thinking you have whiplash … Employers, and thus employees, have been victims of a pandemic economy. People have been furloughed or laid off in record numbers. Visit any nation, anywhere on the planet, and involuntarily losing one’s job is never deemed by the ex-employee to be a happy, welcome circumstance. Universally, we work to provide for ourselves a sense of purpose, make a positive impact, and enjoy an income. Thus, regardless of where you live, losing your job is usually not a cause for celebration. In the United States, however, another reason for which people seek employment is to receive benefits. Amongst those highly desired benefits, and perhaps primary amongst them, are health benefits. Whether an employer pays premium to a carrier in exchange for traditional, “fully-funded” insurance… or… the employer sets aside contributions from itself and its employees, to “self-fund” its health plan… employees appreciate health benefits. So much so, it only makes sense that employers realized they could craft, manage, and fund attractive health benefit plans, using them as an incentive – luring in job seekers and keeping existing employees. Indeed, in a capitalistic economy like ours, employers are always hunting for the most effective ways to attract and keep the best talent. In an economy that is functioning well, it only makes sense to allow employers to do so. What about an economy that is not functioning well? If and when employers are not using health benefits to attract the best talent, because they cannot afford to pay for health benefits – let alone hire said talent in the first place… naturally, those people who were banking on employment as a source for benefits; people who only a few months prior were singing employment based benefits’ praises… will now question the wisdom of such an arrangement. One study 1 suggests that more than five million Americans have lost their health benefits due to being laid off, as a result of COVID-19. Add this to a society that – at least in part – is already contemplating a “Medicare-for-All” option, and we have a perfect storm. One person wrote, “Corporate America fights single payer universal health care afraid to lose power over workers. Insurance companies fight single-payer universal health care because they make money not providing health care. If small business didn’t have to pay for medical, they could raise wages, modernize, expand their businesses and grow our economy. Workers could leave toxic and unsafe working environments or raise their voices when feeling abused without fear of losing their benefits 2 ” and they aren’t alone. There exists a perception that employment-based health plans offer no benefit whatsoever over Medicare, and that – therefore – there is no reason to maintain it. Whenever we, as human beings, make a decision – we perform a cost/benefit analysis. When I wake up in the morning, and decide to brush my teeth, I perform a cost/benefit analysis. I weigh the time it takes to brush against the bad breath and tooth decay I’ll suffer if I fail to brush. If and when we have an interest in another’s cost/benefit analysis, it behooves us to explain to them the benefits and costs involved in that decision. Consider the following example… When my previous automobile hit 100,000 miles, I began contemplating my next automotive purchase. I am constantly being exposed to manufacturer’s marketing – lauding their cars’ qualities. Thus, when I was shopping around, I was more than armed with the costs and benefits of each option. Consider the average American voter. Can you confidently say they are aware of the benefits of employment-based health plans? I doubt it! Can you confidently say they are aware of the costs of an alternative? I doubt it! The bottom line is this – most people believe that providers of health care services charge one amount to all payers. They believe that different health care providers in the same area charge about the same amount for the same services. They believe that health insurance – whether it is fully-insured, self-funded, Medicare, or Medicaid – pays the bill in full, and if there is a discount, those savings are for the benefit of the payer, not the patient. They believe there is no difference between a private plan and Medicare, aside from the means by which they pay for coverage – premiums or taxes. Rather than continuously allow our industry to be bashed by the media, to be misunderstood by the public, and thus fall short when forced to endure a cost/benefit analysis against Medicare-for-All … all with a backdrop of a pandemic economy … it behooves us to educate the public regarding the benefits of employment based health plans. Looking at my own employer, and our self-funded health plan; if Medicare-for-All or some other public option were made available at a lower cost to me than my current plan, I would not make the switch. Why? The answer, simply put, is that I understand the benefits of our plan. I recognize that it is customized to match the needs of a population most like me in needs and wants. I recognize that the costs I pay up front are used to enhance benefits I may need later. I recognize that individuals who passionately care about my wellbeing are monitoring my plan and ONLY my plan, to ensure it functions well. COVID-19 and the unemployment it has triggered armed our adversaries with ammunition. They point at the state of things and argue that health benefits are a human right – and as such – they cannot be tied to something as fickle as employment. Yet, they fail to address that, whether through premiums or taxes, someone needs to pay for health care. Should we all be covered by Medicare, those unemployed individuals will be called upon to pay their share, via taxes, using funds they don’t have. As such, passing the buck is not a solution either. The burden is on us to offer a better solution, and to suggest policies meant to contain the cost of the care itself. Above all else, our job is to remind people of the benefits of private health plans – benefits that Medicare can’t match. We need to change the dialogue – shifting the focus away from unemployment as an excuse to abolish health plans, and instead shift the focus onto reducing the cost of care regardless of who is paying. 1 https://www.familiesusa.org/resources/the-covid-19-pandemic-and-resulting-economic-crash-have-caused-the-greatest-health-insurance-losses-in-american-history/ 2 https://www.concordmonitor.com/End-employer-based-health-care-35555925 ____________________________________________________________________________________________________ Subrogation: The Oldest and Most Effective Form of Cost Containment Maribel Echeverry McLaughlin, Esq. For many health plans, the first interaction with any type of cost containment method usually comes about when they begin to utilize subrogation as a way to keep plan costs low, and recover monies owed to them by third parties. It is one of the original, yet consistently effective, cost con-tainment concepts that, as of recently, tends to get overlooked when discussing new and more innovative ways to enhance plan savings. The history of subrogation can be traced back to as far as the origins of the Court of Chancery in the Elizabethan period. The English Court of Chancery had jurisdiction over all matters in equity, such as trusts, land disputes, the estates of lunatics and guardianship of infants. In this period, subrogation was a common equitable remedy, where one party was permitted to assume a third party’s legal right to collect a debt. In the present day, when plans pay for claims that are owed to them by third parties, they naturally expect to be reimbursed for those costs. However, during the Covid-19 crisis, many states were locked down, and people were forced to stay home; which meant less car accidents, less elective treatments due to statewide bans, and thus less money paid out by plans for medical claims. According to information released by UC Davis, traffic accidents and crash-related injuries and deaths decreased by 50% during the first three weeks of California’s shelter-in-place order. The order began on March 20 and the university estimates that the decrease saved the state about $40 million each day. In other words, the state saved $1 billion in three weeks by having to respond to fewer car accidents. The department found that the state’s reduction in accidents was paired with up to a 55% reduction in traffic and a 40-50% decrease in serious injuries for drivers, pedestrians, and cyclists. 1 While motor vehicle accidents have been less frequent, ironically the drivers that are on the road daily, have become increasingly more reckless. According to the National Safety Council’s President and CEO, Lorraine M. Martin, “disturbingly, we have open lanes of traffic and an apparent open season on reckless driving,” causing more fatal accidents in many states.* Fatalities caused by car accidents increased in Massachusetts and Minnesota 2 , with the latter seeing deadly accidents more than double typical rates. Other states like Nevada and Rhode Island experienced an increase in pedestrian accidents. 3 You would think that during a pandemic, plan spending would increase as the injuries in motor vehicle accidents get worse and the cost of a hospital admission for patients with COVID-19, the dis-ease caused by coronavirus, can top tens of thousands of dollars. Especially as there were over a hundred thousand hospitalizations just in the early months of the pandemic. Eventually, we can expect new additional costs to plans when an effective pharmaceutical treatment is identified, or hopefully a vaccine becomes widely available. However, social distancing measures, concerns over hospital capacity, and fears of contracting the virus are leading to other critical healthcare services being delayed or forgone. For example, providers have delayed elective surgeries during the pandemic, thus having a downward effect on health costs, at least in the short term. 4 Taken together, this data shows that there has been an abrupt and sizable decrease in healthcare utilization, at least in the early months of the pandemic. The exception has been telehealth, which has experienced an increase; however, the increase so far in telehealth was not enough to offset the decrease in in-person office visits. 4 In the first quarter of 2020 (January through March), spending on health services was relatively flat overall. Across all health care services, which excludes prescription drugs and social services, spending was down about -0.4% relative to the first quarter of 2019. Spending was up on nursing homes (5.9%), physician offices (3.9%), outpatient care centers (1.1%), but spending on medical labs (-2.7%) and hospitals (-4.1%) was down in the first quarter of 2020 com-pared to last year. 4 Federal spending data from the BEA are reported monthly on an annualized basis. If sustained for a year, the drop in personal consumption expenditures on health care services seen in April would total roughly $1 trillion dollars over a 12-month period. 4 Property and casualty insurers are also reporting a 40 to 50% drop in claims volume for personal automobile claims and a 30 to 40% reduction for commercial claims due to the Covid-19 pandemic. 5 It is too soon to say whether the drop in frequency will fully offset the rebates that many auto-mobile insurers have been extending to consumers, which the Information Insurance Institute estimates will amount to $10.5 billion. With all this information, it is easy to conclude that health plans are also saving money in not paying for motor vehicle accident related claims. According to the National Highway Traffic Safety Administration (NHTSA), U.S. motor vehicle crashes in 2010 cost almost $1 trillion in loss of productivity and loss of life. 6 The Centers for Disease Control and Prevention (CDC) said in 2010 that the cost of medical care and productivity losses associated with motor vehicle crash injuries was over $99 billion, or nearly $500, for each licensed driver in the U.S. 7 In 2015, the CDC report-ed that the average cost for a treatment for motor vehicle accident was $2,314. Which means, if a health plan has 100,000 employees, and roughly one in 150 lives will be involved in one motor vehicle accident per year, then a plan has a potential exposure of 600 lives with accident-related claims that year. If 600 lives have an average of $2,314 in costs, a plan could have had an expense of approximately $1.3 million in costs that year. It is easy to conclude then, if accidents approximately decreased by 50%, then the plan’s expenses may have also decreased by 50%, thus saving a plan approximately an excess of $690,000, this year, alone. The Phia Group boasts their recoveries for established clients total an average of $30 recovered per employee per year. 8 That could trans-late, for a 100,000-employee plan, into a $3,000,000 recovery on a good year. It is apparent, by way of current events in this country, that this new normal will be here for quite some time. It is probable that when social distancing rules become more relaxed, people will feel more comfortable going back to provider’s offices and having elective surgeries, thus increasing plan expenses. But until the virus is under control, and an effective treatment is found, we can only assume that we will continue in this pattern of uncertainty. Plans more likely than not, will see less expenditures this year in claims paid for members. This will allow for next year’s premiums to stay low and provide exceptional benefits to members at a low cost. A plan could determine that not paying claims is less lucrative than getting claims reimbursed back to them. But the only way a plan would get any claims reimbursed to them, would be if they paid the claims in the first place. Even though subrogation tends to be the main form of cost containment for plans, it is safe to say that the best form of cost containment is to not have to pay those claims at all. 1 Fell, A., Kushman, R., Oskin, B., Perez, T., & Bankston, E. (2020, June 09). California COVID-19 Traffic Report Finds Silver Lining. Retrieved July 10, 2020, from https://www.ucdavis.edu/news/california-covid-19-traffic-report-finds-silver-lining 2 Wilson, K., Aued, B., Hertz, D., & Cuba, J. (2020, April 10). COVID-19 Cuts Car Crashes - But What About Crash Rates? Retrieved July 10, 2020, from https://usa.streetsblog.org/2020/04/09/covid-19-cuts-car-crashes-but-what-about-crash-rates/ 3 Have Car Accidents Decreased During the COVID-19 Crisis? (n.d.). Retrieved July 10, 2020, from https://www.hhrlaw.com/blog/2020/may/have-car-accidents-decreased-during-the-covid-19/ 4 Twitter, C. (2020, May 29). How have healthcare utilization and spending changed so far during the coronavirus pandemic? Retrieved July 10, 2020, from https://www.healthsystemtracker.org/chart-collection/how-have-healthcare-utilization-and-spending-changed-so-far-during-the-coronavirus-pandemic/ 5 *, N. (2020, April 15). Auto Claims Decline 40 to 50% as Consumers Stay Home, Snapsheet Says. Retrieved July 10, 2020, from https://www.claimsjournal.com/news/national/2020/04/15/296565.htm 6 Vi.email@example.com. (2020, July 06). National Highway Traffic Safety Administration. Retrieved July 10, 2020, from http://www.nhtsa.dot.gov/ 7 Centers for Disease Control and Prevention. (n.d.). Retrieved July 10, 2020, from http://www.cdc.gov/ 8 Services. (n.d.). Retrieved July 10, 2020, from https://www.phiagroup.com/Services/Save-Claims-Recovery-Subrogation-Services ____________________________________________________________________________________________________ COVID-19, Balance Billing, Out-of-Network Claims, and Confusing Charges – An Ugly Combination By Jon Jablon, Esq., and Tim Callender, Esq. The COVID-19 crisis has sparked a discussion on an old, but repeatedly important and troublesome issue: balance billing and/or overbilling. During the early days of the COVID-19 crisis, news outlets were quick to report examples of health insurance coverage confusion, network issues, and billing issues, all related to a variety of COVID-19 claims. In April, the federal government chose to tackle this concern by placing prohibitions on how providers could bill COVID-19 patients who received services from providers receiving funds under the Public Health and Social Services Emergency Relief Fund. This attempt to control balance billing and excessive charging practices led to media confusion, with numerous media outlets reporting that the federal government had banned all balance billing and/or all surprise billing, which was not the case. The confusion on this basic attempt to stymie out of control billing, during a health crisis, highlights to need to discuss, yet again, the ever-pressing problem of balance billing, cost, network controls, and why excessive balance billing continues to happen. Practically speaking, when a member receives a balance-bill, the employer itself, the sponsored health plan, and the payer all go into “panic mode,” which is understandable. It is no secret that hospital chargemasters are essentially arbitrary. Leaving aside the fact that many plans have engaged a patient advocacy solution to assist with balance-billing, many health plans, TPAs, brokers, and patients want to know: Who’s to blame, and why is balance-billing allowed to happen? What is really going on when a provider balance-bills a patient? What can be done to avoid it? Who’s To Blame? It’s easy and intuitive to blame medical providers for overbilling. The bill has the hospital’s name on it, and the bill is designed to compensate the hospital for use of its operating room, staff, and other resources. But blaming the provider is like blaming a person for taking advantage of a large loophole. It’s a dog-eat-dog world out there, and most of us take advantage of loopholes. Nothing illegal, hopefully, but if something is within our legal rights and it saves or makes us money, most people can reasonably be expected to operate within the parameters of that advantageous loophole. Instead, perhaps we should scrutinize the legal / regulatory authority. For years there have been certain legislative proposals in the works, both on the federal and state levels, that would effectively limit provider billing to a more reasonable amount, or at the very least provide a system of checks and balances. As it stands, though, alarmingly few laws like this exist today, and those that do tend to favor providers far more than any fairness they offer to health plans or patients. The reason? Everyone is stuck in the past. The old system, where insurers have unlimitedly-deep pockets, is not at all the case with self-funding, yet that still seems to be the mentality that legislatures and medical providers are using. Until there is a meaningful legislative change to add some sort of limitation on, or even a reasonable formula that must be followed by, provider billing, there won’t be any change to the paradigm where any price goes. What Is Really Going On? Over years of dealing with overbilling and the problems it creates, it has become clear to many in the industry that hospitals do not really expect to get paid their gross charges. Hospitals do not collect, nor do they intend to collect on balance-bills. It seems that the collections threats are scare tactics used to gain higher payments from health plans, as many plans will do whatever it takes to protect the patient. With some plans, that tactic works well; other plans call a hospital’s bluff. Think of it this way: when I walk into my local bike shop and ask for a tune-up, they quote me $179. Does it actually cost them the full $179 to provide the service? Probably not. Could they charge less? Sure. But the market bears it, and, more importantly, there’s no law prohibiting the shop from charging that fee. Many suggest comparisons to other markets are inappropriate, since there’s a third-party payor (i.e. insurance) involved – but that does not fundamentally change the dynamic except to remove the relevance of the “the market bears it” factor. The medical services industry is not a “free market” since in most cases, expecting patients to actually shop around is extremely unrealistic; without the market-bearing aspect, we are left with only the reasoning of “there is no law against it.” For payors, that is not a good enough justification for such inflated, arbitrary billing. What Can Be Done About It? How about patient advocacy? With respect to plans that systematically allow non-network claims at any amount less than full billed charges, most have adopted some form of patient advocacy or defense, to attempt to minimize the noise and impact of balance-billing, protect patients, and still ultimately save money on claims. That is what reference-based pricing vendors typically aim to accomplish and most do a pretty good job. But, no matter the vendor, there are still some providers who simply will not go away without a big fight. The prevailing reference-based pricing mentality seems to be that no network is the best network, and for some plans that works very well. It depends on the employee population, employer’s risk tolerance, geographical location, and provider population density (and potentially other factors), and a health plan’s friendly neighborhood RBP vendor or broker are in the best positions to advise on that aspect – but at the end of the day, small, regional networks have tended to be a key to successful reference-based pricing for many health plans. Direct Contracts & Narrow Networks “Narrow networks” constitute a middle ground between a direct contract with a provider and a traditional PPO model; although some large national networks now offer certain “narrow network” options, a health plan or TPA can create a de facto narrow network by simply contracting with a small curated group of providers. By picking and choosing providers, the payor is able to limit the size of the network (making the steerage created more valuable to each individual provider) and ensure that providers make certain concessions in exchange for the increased steerage. “Custom” narrow networks can exponentially increase steerage for the chosen providers, but keep in mind that to many providers, the decision of whether to contract, or what rate to offer, depends on the volume of steerage – and volume is measured in number of lives, not in percent of lives. In other words, a health plan that contracts with two local physicians will in theory give each provider 50% of its total steerage, which is a very attractive percentage – but when the hospital asks how many lives make up that 50%, if the answer is 25 lives, the conversation is going to become much more difficult. If, however, the answer is 2,500 lives, you may have another story. That is one reason that TPAs often negotiate direct contracts across an entire block of business – however, that may leave the hurdle of having all groups potentially opted-in to the contract, possibly without wanting to be. What Does The Future Hold? A couple of years ago, we at The Phia Group conducted a survey. One of the questions was “How do you view reference-based pricing?” The results were as follows: 76% of responders said, “Catalyst for change (part of a greater solution that will be a long term answer).” 14% of responders said “Stop-gap (a band aid that won’t resolve excessive healthcare costs long term).” 6% of responders said “Harmful (once enough people get balance billed, we’ll look bad and it will become prohibited by law).” 4% of responders said, “The whole shebang (the way to permanently solve healthcare price gouging).” State surprise billing legislation definitely seems to be a step in the right direction toward curbing provider billing (although some states have shifted a higher burden onto the health plan rather than truly limiting billing). It is difficult to tell whether the rise of reference-based pricing has been a catalyst for that change, or simply the self-funded industry realizing, fifteen years ago, what legislatures have only just begun to realize in the last few years.