lowed to decide whether or not a certain type of care is “medically necessary,” and therefore will or will not be covered. 31 In short, as one commentator observed, “[t]here is no degree of certainty regarding the exact coverage
a plaintiff will receive in the future or whether the law’s requirements will
stand the tests of time.” 32
B. The Problem of Out-of-Network Care and “Balance Billing”
In assuming that claimants will have access to a statutorily mandated set
of benefits, the proposal also appears to suppose that claimants will be able
to obtain all the medical care they need from providers who are within their
plan networks. 33 However, one way that health plans control costs is by lim-
iting the number of physicians, hospitals, laboratories, and other health care
providers in their networks. 34 This is becoming a reality as reports surface
stating that plans are currently creating narrow networks with smaller num-
bers of hospitals, physicians, and other providers. 35 As a result of the narrow-
ing, this could mean that even if a claimant’s providers are in the plan net-
work at one point, they may no longer be in the plan in the future when the
claimant needs their services.
If claimants cannot obtain the care they require within their health plan
network, they will have to obtain care from out-of-plan providers or forgo
the care if they cannot afford it. 36 Patients who obtain care from out-of-network providers often must pay more out-of-pocket than for care from network providers, since providers who are not in the plan network may be free
to bill patients whatever they wish for the entire costs of care or for that portion of their charges that is not paid by the plan—this practice is known as
under the rule ( i.e., parity versus insurer-defined level of coverage), insurers may offer a lesser
scope of habilitative coverage in favor of a richer rehabilitative benefit package.”).
31. See, e.g., David M. Studdert & Carole R. Gresenz, Enrollee Appeals of Preservice
Coverage Denials at Two Health Maintenance Organizations, 289 JAMA 864, 864 (2003)
(reporting that almost thirty-seven percent of appeals of denials of coverage by HMOs involved medical necessity disputes).
32. Cardeli, supra note 15, at 18–19.
33. See generally Congdon-Hohman & Matheson, supra note 1, at 153-60.
34. See Dianne McCarthy, Narrowing Provider Choice: Any Willing Provider Laws After
New York Blue Cross v. Travelers, 23 AM. J.L. & MED. 97, 98 (1997).
35. See Reed Abelson, More Insured, but the Choices Are Narrowing, N. Y. TIMES, May
12, 2014, at A1 (“No matter what kind of health plan consumers choose, they will find fewer
doctors and hospitals in their network—or pay much more for the privilege of going to any
provider they want.”).
36. Jim Burress, Some Insured Patients Still Skip Care Because of High Costs, KAISER
HEALTH NEWS (June 10, 2015), http://khn.org/news/some-insured-patients-still-skip-care-because-of-high-costs// (according to Lydia Mitts, a senior policy analyst with the health care
advocacy group, Families USA, “One in four adults who were fully insured for the whole year
still reported they went without some needed medical care because they couldn’t afford it.”).
