A bill was introduced in the Massachusetts Senate (S. 2170) entitled, “An Act Relative to an Affordable Health Plan.” “Affordable health plans” are defined as insurance plans that satisfy state health insurance requirements and contain benefits that are equivalent to the lowest level benefit plan available to the general public. These plans represent the bare minimum or floor. This bill would require that health care professionals licensed in Massachusetts, who participated in an insurance network or health plan, would not be able to “refuse to participate in the carrier network with respect to the Affordable Health Plan” and must take part in the panel, accepting predetermined compensation levels. If not, professional boards could revoke their licenses. This is known in the insurance industry as an “all products clause.” Further, health care professionals would be subject to penalties if they engaged in balance billing. The Committee on Health Care Financing apparently heard sufficient opposing testimony from intent health care professionals and professional organizations that the bill has been squelched for the time being, although there is another bill (H. 4452) in the works that incorporates similar language and bears watching.
The Committee on Government Relations and Insurance (CGRI) applauds those health care professionals and organizations that were paying close enough attention to legislative initiatives in the Massachusetts Senate to successfully oppose and stall (S. 2170). But it is worrisome legislators were looking to regulate third-party contracts with insurers and set compensation levels in the first place. Even more worrisome is that boards would become involved and would have expanded their role beyond public protection. The board would be assuming an “enforcer role” for insurance plans, enforcing with the threat of license revocation.
Professional boards originally came about for the purpose of protecting the public. Their mission was to ensure that health care professionals applying for licensure were qualified to practice with respect to education, training, competency, malpractice history, health, and professional ethics. More recently however, the purview of Boards has expanded.
In Maryland, the medical board sanctioned Harold Eist and fined him for refusing to disclose confidential medical records without first obtaining consent from his patient. Eist, a psychoanalyst, sued the licensing board. An administrative judge decided in his favor and overturned the fine. Undeterred, the board eventually appealed to the Court of Special Appeals, the highest court in Maryland. The hearing was held in the spring of 2008, but a judgment has yet to be rendered. It is puzzling how having unfettered access to confidential patient records would achieve protection of the public, any more than revoking a clinician's license because the clinician refused to contract to serve on the clinician panel of all plans offered by an insurance company. These activities can be understood as extending beyond the intent of public protection.
Former governor of Massachusetts, Mitt Romney, signed into law the most ambitious state health care reform proposals in the nation. One of the hallmarks of that bill was the “individual mandate,” which required that individual citizens purchase health care insurance or be subjected to penalties. Although residents who were uninsured were mandated to purchase health care insurance, there was not yet the imposition of a mandate upon health care professionals, a mandate compelling contracts with third-party carriers and acceptance of specified levels of compensation as a condition for licensure. If the Senate bill (S. 2170) or (H. 4452) were to become law, in addition to the individual mandate in Romney care, there would also be what can be described as a provider mandate.
It may not be such a surprise that putting forth an individual (consumer) mandate would be followed by a corresponding provider mandate. The Hillary Clinton and Kennedy-Kassebaum national health care plans both contained individual and provider mandates. These combined mandates were well aligned to discourage private contracting, i.e., treating and billing a patient outside of the health care system. Fortunately for psychoanalysts, many of whom make a living from seeing patients privately, these threats to private contracting and private practice did not materialize.
The United States Senate version of universal health care, like the ones that came before it, also contains an individual mandate provision that requires citizens to purchase insurance. Clinicians are not at this point mandated to contract with public or private third-party payers, and there is no explicit threat to private contracting per se, but many of the details remain unsettled. CGRI will carefully monitor such bills, both on the state and national levels, keep members apprised about changes in the scope of professional boards, and will, with the help of our colleagues, jealously defend against mandates that threaten private practice.
For more information regarding pending bills in the Massachusetts legislature:
(S. 2170):
(H. 4452):
Graham Spruiell, M.D., serves on the faculty at Beth Israel Deaconess Medical Center, Harvard Medical School, and the Psychoanalytic Institute of New England, East.