番茄社区

Healthcare organizations have already over its interpretation of the , but one Long Island physician has declared the new law designed to protect patients from surprise billing flat-out unconstitutional.

Acute care surgeon Daniel Haller, MD, of Rockville Centre, New York, in December 2021 against HHS, among other federal agencies. The complaint argues that the Act, which took effect on Jan. 1, 2022, is unconstitutional, "denying to physicians, including plaintiffs, the right to bill their patients for the reasonable value of the services they have rendered."

Haller's argument against the act differs from those made by other groups, such as the and the (TMA), in their own lawsuits.

The medical associations that they agree with protecting patients from being stuck with unfair bills when insurers won't compensate doctors the full asking price, but take issue with aspects of the independent dispute resolution (IDR), an arbitration process meant to help insurers and out-of-network providers agree on a price for services. Their arguments say the process favors insurers, while still leaving the patient out of negotiations.

But Haller's argument counters the entire premise of the law -- that patients shouldn't be stuck with giant bills for their emergency medical care.

Katie Keith, JD, MPH, of the O'Neill Institute for National and Global Health Law at Georgetown University Law Center in Washington, explained that the AMA and other lawsuits are "complaining about how a law is being implemented. This New York [Haller] case is different because they are challenging the law itself."

If the former lawsuits succeed, "they might increase premiums," she noted, but if the Haller suit succeeds, "the whole wall would go down."

Keith explained that in April, Haller's lawyers -- in its bankruptcy proceedings -- filed a preliminary injunction and a temporary restraining order against the act, essentially asking for an expedited review, "like it's an emergency: We need you to rule on this quickly." The judge at the U.S. District Court for the Eastern District of New York has scheduled the next hearing for June 7.

In the lawsuit, Haller argues that he "and the other surgeons of Long Island Surgical, PLLC perform approximately 2,682 emergency consultations and surgical procedures on patients admitted to hospitals through their emergency departments each year."

More than three-fourths of those patients are out-of-network, which means that he's been able to bill them for surgeries that their insurers won't pay him for or will only pay a small portion of. If his lawsuit prevails, a national injunction by a federal judge could effectively invalidate the No Surprises Act and its patient protections.

If Haller's lawsuit prevails, a national injunction by a federal judge could effectively invalidate the No Surprises Act and its patient protections, but "I think it's a really weak argument; a really, really weak argument," Barak Richman, PhD, a professor of business administration at Duke School of Law in Durham, North Carolina, told 番茄社区. "And in that sense, it's not terribly notable."

Richman pointed out the problems with Haller's complaint. First is the opposition to the act attempting to "define" the amount physicians are entitled to be paid for their services "by the amount the health plan has agreed to pay other physicians" (in-network rates for services) in the IDR process. This excludes consideration of the amount a physician like Haller normally charges out-of-network patients.

But Richman explained that in-network agreements, by definition, require physicians to agree to those rates. "It takes two to tango," he said, adding "I would be very curious about why they [Haller and representatives] find it insignificant that other doctors and health plans have agreed to certain prices -- that's what you call the market price."

As for the suit's claim that the act denies physicians "the right to bill their patients for the reasonable value of the services they have rendered," Richman asked, "What exactly is the 'right to bill'?" He noted that anyone can 'bill' someone else, but the dispute -- and the act itself -- is really about the right to collect on the bill. "I would be very surprised and profoundly disappointed if the constitutional arguments that are being invoked successfully invalidate the whole statute," he said.

New York state has had a , which served as somewhat of model for the No Surprises Act. While Haller must adhere to that law, it allows arbitrators to consider what out-of-network doctors have charged for their services in the past, and those amounts are typically much higher than what in-network providers have agreed upon with insurers.

Haller, Long Island Surgical, and the company's did not respond to requests for comment from 番茄社区 by press time. The AMA and TMA declined to comment on Haller's lawsuit.

Keith suggested that Haller's more extreme stance may be reason enough for those professional groups to distance themselves from him. "Providers in their public communications about their lawsuits have tried to bend over backwards to say, 'This is not about patients. ...We all want to take patients out of the middle,'" Keith added. "This one does not. This is actually [saying], 'We are more than willing to take down the patient protection to continue to bilk patients.'"

Comment