https://fdms.erulemaking.net/.../component/submitterInfoCoverPage?Call=Print&PrintId=0900006480b3d173&Comment=true[8/30/2010 1:15:24 PM]

PUBLIC SUBMISSION

As of: August 30, 2010

Received: August 27, 2010

Status: Pending_Post

Tracking No. 80b3d173

Comments Due: August 27, 2010

Submission Type: Web

Docket: HHS-OS-2010-0014

Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits,

Rescissions, and PatientProtections

Comment On: HHS-OS-2010-0014-0001

Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits,

Rescissions, and PatientProtections

Document: HHS-OS-2010-0014-DRAFT-0068

Comment on FR Doc # 2010-15278

Submitter Information

Name: James Donelon

Organization: Commissioner, Louisiana Department of Insurance

General Comment

OCIIO-9994-IFC

The Louisiana Department of Insurance (LDOI) is submitting the following comment in response to the U.S.

Department of Health and Human Services (HHS) Interim Final Regulation on Patient Protection and Affordable

Care Act (PPACA): Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient

Protections. 

It is uncertain whether the term “limitation,” as it is used in §2719A(b)(1)(C)(ii)(I), is intended to apply to

administrative requirements, such as submission of prior notice, or whether “limitation” includes differing levels of

benefit coverage of emergency services based upon the network status of the provider such that a patient would

be subject to balance billing from out-of-network providers. If “limitation” includes the differing levels of benefit

coverage of emergency services for out-of-network providers, such out-of-network providers would be prohibited

from balance billing the insured. 

As proposed, this Regulation interprets §2719A(b)(1)(C)(ii)(I) to clearly allow the out-of-network provider to

balance bill the “...excess of the amount the out-of-network provider charges over the amount the plan or issuer

is required to pay under this paragraph (b)(3)(i)...” Furthermore, the proposed Regulation properly states that the

purpose of the protections of PPACA would be defeated if a plan or issuer pays an unreasonable amount to an

out-of-network provider thereby increasing the balance billing amount to the insured. Additionally, this proposed

Regulation does not limit a provider’s ability to set the amount he charges for an emergency service which

creates the “excess amount,” referenced in this proposed Regulation. It does not contain a provider anti-abuse

provision and does not anticipate the ability of a provider to increase his charges and collect the excess of the

amount of the out-of-network provider charges over the amounts the plan or issuer is required to pay under

paragraph (b)(3)(i). Thus, the incentive for increased and unreasonable billing practices by out-of-network

providers in order to create an “excess amount” could circumvent the intent of this patient protection in PPACA. In

essence, without clarifying that “limitation” applies to differing levels of benefit coverage for emergency services,

an out-of-network provider can continually impose unlimited excess amounts that can be balance billed to the

insured. Such practice would completely negate the intent and purpose of this patient protection provision of

PPACA.

For example, prior to the enactment of PPACA, a provider’s charges for an emergency service could have been

$1,000.00. The provider would have submitted the bill to the plan or issuer, the bill would have been adjudicated

and the provider reimbursed $300.00. The provider would have then balanced billed the patient for $700.00.

After the enactment of PPACA, the provider decides to increase his charge for the same emergency service, as

mentioned above, to $2,000. The plan or issuer then adjudicates the claim and pays the greatest of the three

amounts enumerated in this Regulation which may total $800.00. This ensures that he makes an additional profit

of $500.00 from the patient and the patient is now liable for a total $1,200.00. 
https://fdms.erulemaking.net/.../component/submitterInfoCoverPage?Call=Print&PrintId=0900006480b3d173&Comment=true[8/30/2010 1:15:24 PM]

The LDOI is recommending that clarification and guidance is needed from HHS on the interim final Regulation. To

permit balance billing in the Regulation eliminates any patient protection for the insured in an emergency

situation. Furthermore, to not provide an anti-abuse provision for out-of-network providers creates a financial

disincentive for insureds to receive emergency services and does not protect patients from substantial financial

burden. PPACA recognized that prior authorization only serves as an obstacle to an insured receiving emergency

services and therefore removed any such requirement. In furtherance of that laudable objective, HHS should

clarify that an out-of-network provider is prohibited from balance billing the insured once the out-of-network

provider has received the copayment or coinsurance from the insured and the greatest of the three amounts

enumerated in this Regulation from the plan or issuer. Allowing balance billing creates a substantial financial

burden and may discourage patients from obtaining the care needed in an emergency situation.

Attachments

HHS-OS-2010-0014-DRAFT-0068.1: Comment on FR Doc # 2010-15278