The grandiosely entitled ‘Out-of-network, Consumer Protection, Transparency, Cost Containment and Accountability Act’ passed both the New Jersey Senate and Assembly on April 12th.  NJAASC has been in the forefront of opposition to this bill in its various incarnations for the past eight years or more. In the very beginning we were the only organized opposition, while more recently we have been part of a larger coalition of over twenty health care organizations and professional societies opposed to this hostile legislation.

Last minute amendments to the bill gained the support of the Hospital Association, which along with the bill being tied to Senate President Sweeney’s nuclear subsidy bill, compromised our effort to hold the bill in the Senate, where the bill narrowly passed. The bill now goes to the Governor for signature. NJAASC along with the rest of the coalition is still at work on this bill, in the hopes of getting some last minute tweaks worked into it. The Governor has signaled his support for legislation of this nature, but not this bill in particular. While it is doubtful that he would conditionally veto it, there may be room for compromise on some portions of it. Should this bill be signed into law, it would become effective 90 days from signature.

As there seems to be misinformation and misunderstanding regarding the bill, I feel it necessary to explain it, from the perspective of ASCs in particular. Make no mistake this bill is not about patients, or patient protection, nor is it about transparency. If that were the case, the health care provider community would have backed a bill limited to those issues a long time ago. Indeed a companion bill from Senator Sarlo that addressed just that narrow issue of transparency and disclosure passed out of Senate Commerce Committee along with this one, but was not put up for a floor vote. First and foremost this is an insurance carrier driven piece of legislation, that is good for them, and no-one else.

NJAASC does support the provisions in this passed legislation that require increased transparency and disclosure for the consumer, which gives them more information about their financial responsibility. These disclosures are required to be made by both healthcare providers and insurers. -Disclosure by insurers is very important , as consumers are in many cases genuinely surprised and shocked by the type and amount (or lack thereof) of coverage provided in their policies.

This is a significantly watered down and amended version of the bill from when first introduced, and that is a testament to our continued opposition and subsequent dialogue with the architects of the bill.  While NJAASC had some very specific, albeit narrow issues with the bill, the majority of the bill does not really apply to ASCs. There is no provision for any changes or  reductions in OON payments in this bill for ASCs, I want to make that clear. Benefits are determined by the provisions of the individual plan(s).

The biggest sticking point and bone of contention for doctors was the creation of an arbitration system-‘baseball’ style, as well as the payment methodology to be used- a percentage of Medicare.  Again, arbitration does not apply to ASCs, so you will not have to worry about it. There is no need to go into this further, but I will mention that this bill does not cover every insurance plan. Only fully insured plans are covered, and since about 70% of the plans state wide are self-funded- regulated by the Federal Government under ERISA, that leaves a potentially gaping hole- though the bill does allow for ERISA plans to ‘opt in’ to the arbitration process. That would potentially bring up legal issues due the fact that those plans are Federally regulated.

The most important issue for ASCs would be the ‘duty to collect’ part of the bill. When first introduced it made it a crime to waive patient responsibility. We got that reduced- the criminal wording removed. Now the bill reads that it will be up to DOBI to implement a system and identify a ‘pattern of behavior’ as regards patient responsibility waiving. We have hope that we can affect that language –if not thru the Governor, certainly thru DOBI. Right now the bill does not say that you would have to send a patient to collections, nor pursue legal action, and we would like to get that codified in the DOBI proceedings.

The bill provides for increased disclosure by health care providers. This includes the in/out of network status of the provider/facility-which quite honestly you and doctors providing service at your facility should have been doing already, as well as informing the patient of their insurance policy cost sharing-which by the way applies to in network as well. There is also language in the bill requiring website posting of facility and provider information. All of this and the final duty to collect language and implications will be outlined by NJAASC for you, when the bill is signed by the Governor and when DOBI implements their piece of the process.

While this bill cannot be considered a good one, it is not catastrophic for ASCs by any means. NJAASC would still prefer this bill not enacted into law, and would rather have Senator Sarlo’s bill. So while victory is a difficult word to use with this bill, one can make that argument when taking into consideration how long this bill has been held up, and what the alternatives could have been.

Jeffrey Shanton

President, NJAASC

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