BSI Bolstered by Clarification of Statute on Discounted Healthcare ServicesPosted: October 30, 2012
By Richard L. Brown, MD, MPH
While behavioral screening and intervention (BSI) has continued to gain momentum in Wisconsin, a legal issue involving billing has hindered some clinics in delivering BSI and discouraged other clinics from hiring health educators to do so. For years, there has been widespread perception that Wisconsin state law prohibits clinics from delivering BSI at no charge to patients who cannot afford it. Confusion has shrouded this issue, as the specific statute could not be located, and this perception could not be tested – until now.
After extensive research and legal consultation, WIPHL is pleased to announce that all Wisconsin clinics are able to deliver BSI free of charge to uninsured patients and any patients for whom a fee would create undue financial hardship. Clinics can hire health educators and deliver systematic BSI to all patients regardless of the patients’ ability to pay.
The belief about this issue has especially hindered BSI delivery at federally qualified health centers (FQHCs), community-based organizations whose mission is to provide high-quality healthcare to economically disadvantaged individuals. At most FQHCs where health educators systematically deliver BSI, the preference is to serve all patients, including “sliding scale fee” patients whose income determines how much they pay for healthcare services. Because of the purported law, FQHC administrators believed that their sliding scale fee patients had to pay extra for BSI. When notified about the fee, most patients understandably decline.
The issue has also troubled WIPHL’s clinical partners in the private sector. Administrators and providers at many clinics would prefer to offer BSI free of charge to uninsured patients but perceived that doing so would violate state law.
Administrators, providers and staff at many of WIPHL’s participating clinics have understandably felt ethically uncomfortable about delivering inferior care to their patients of lesser economic means. The prospect of such discomfort has discouraged some clinics from partnering with WIPHL altogether.
Dianne Kiehl, WIPHL Advisory Committee member and Executive Director of the Business Health Care Group of Southeastern Wisconsin, clearly recalled that a statute prohibiting the discounting of healthcare services was passed in the 1980s. At that time, managed care organizations became prominent and established networks of specialty physicians with whom they contracted for care at reduced rates, resulting in lower co-pays for patients when they saw those specialists. Some out-of-network specialty physicians attempted to attract managed care patients by offering discounts to individual patients. The statute in question was intended to help maintain the integrity of managed care organization specialty referral networks.
Despite Dianne’s familiarity with the statute, discussions with many Wisconsin healthcare leaders and calls to several state agencies, the statute could not be found.
Thanks to Jo Musser and Fred Nepple, the mystery is now solved. Musser, a former Wisconsin Insurance Commissioner and current WIPHL Advisory Committee member, recommended WIPHL contact a healthcare attorney. With help from the Wisconsin Collaborative for Healthcare Quality, which collaborates with WIPHL in the Agency for Healthcare Research and Quality-funded Partners in Integrated Care program, WIPHL contracted with Fred Nepple. Nepple previously worked for 27 years at the Office of the Insurance Commissioner and is currently with the law firm, Michael, Best and Friedrich in Madison.
After quite a bit of searching, Nepple found the statute – Section 146.905. Before reading the statute, you’ll want to know that Wisconsin state law defines health insurance as “disability insurance.”
Section 146.905, Subsection 1 reads: “Except as provided in Subsection (2), a health care provider, as defined in Section 146.81 (1) (a) to (p), that provides a service or a product to an individual with coverage under a disability insurance policy, as defined in section 632.895 (1) (a), may not reduce or eliminate or offer to reduce or eliminate coinsurance or a deductible required under the terms of the disability insurance policy.”
This statute explicitly clarifies the law does not apply to patients without health insurance. It is also important to note that fee-for-service Medicaid coverage is not considered health insurance by the state of Wisconsin. The statute continues on to say the law doesn’t apply if payment for services imposes an undue financial hardship on the patient. The statute does not define “undue financial hardship,” and the statute has never been clarified by case law, which means clinics have discretion in interpreting this phrase.
Another interesting aspect of the statute is that it does not name a state agency to enforce it. Since no state agency is closely enforcing the law, there seems to be little risk in interpreting undue financial hardship quite broadly as it’s hard to envision who might bring a suit against a clinic that discounts BSI. Of course, I am not an attorney, so please check with your attorney on this if you have concerns.
Mr. Nepple’s written opinion will be distributed to WIPHL’s partnering clinics and is posted on our website here.
To read the full text of the statute, click here.
We, at WIPHL, are committed to identifying barriers and finding solutions to ensure all patients – regardless of their ability to pay – have access to critical BSI services. If there are barriers preventing you or your clinic from delivering BSI, we’d love to hear from you and discuss how WIPHL can help you overcome those barriers. To contact us, please visit our website at www.wiphl.org or email us at firstname.lastname@example.org.
FQHC administrators, providers, and staff: Look for Dr. Brown’s article on BSI in the next issue of Community Health Forum, the magazine of the National Association of Community Health Centers.