The Obamacare lawsuit which has nothing to do with Obamacare...mostly.

On Tuesday, the New York Daily News posted a story about a man in New York who is suing Empire BlueCross BlueShield because the insurance policy he purchased from them is essentially useless. As the header summarizes it:

Man sues Empire insurance company, claims search for doctor became ‘frustrating’ runaround

Jon Fougner says his simple search for a doctor through the insurance company website turned into a ‘Dickensian nightmare.’ Some doctors did not accept new patients, others never returned his calls, and some had wrong contact information listed on the Empire BlueCross BlueShield website, he claims. He accuses Empire of breach of contract, fraud and false advertising.

When you read through the entire story, it does indeed sound like a horrible comedy of errors, though I'd probably call it more "Kafkaesque" than "Dickensian". In any event, it's pretty damning of Empire BCBS, and on that level it should disturb those who are sympathetic to people being caught in consumer nightmare hell.

The next day, CNBC published their own writeup about the Empire BCBS lawsuit, written by healthcare reporter Dan Mangan. For the most part it does a nice job of retelling Mr. Fougner's tale of woe. However, there's one key difference. See if you can spot it in the headline and opening sentence:

Obamacare plan is 'Dickensian nightmare:' NY lawsuit

What's the prescription for this man's frustrating, fruitless quest to find a doctor on his Obamacare plan? Going to court.

A Yale Law grad is suing a New York insurer, claiming that the $620.69-per-month health plan he bought failed miserably in its promise that its website would be available to help him find a primary care physician "anytime."

"Obamacare" mentioned in the headline and the first sentence (it's also thrown in a third time later in the article). The original NY Daily News article makes no mention of "Obamacare", "the ACA", "the Affordable Care Act" or "New York State of Health" (NY's ACA exchange) except at the very end, as part of Empire's boilerplate response, in a context which makes it clear that this particular case has very little to do with the exchange anyway:

She [the Empire spokeswoman] noted the company's "Pathway Network" is "comprised of nearly 49,000 physicians and 83 hospitals that are considered 'in-network' for Exchange or Affordable Care Act compliant individual and small group plans.”

Both articles make it pretty clear that aside from Fougner happening to purchase the policy through the NY State of Health exchange website, neither the exchange, nor the ACA/Obamacare itself has anything directly to do with his troubles or his complaints.

In fact, the articles both make it pretty clear that it was the Empire website--not NYStateofHealth or HC.gov--which provided the false/mistaken information:

From the NY Daily News:

"Empire promised that its website would be available to find a PCP 'anytime.' Sadly, nothing could have been further from the truth," the suit says.

He says he used the “find a doctor” function on Empire's website to track down a doctor near him who was accepting new patients, and 30 names came up.

From CNBC:

Fougner, who filed the case himself, said that after he looked on Empire's site for doctors near him who were accepting new patients, it listed 30 physicians. But he soon found problems with all of those doctors, who either didn't take the Empire plan, weren't taking new patients, had disconnected numbers, had incorrect numbers listed or didn't call him back, the News noted.

There have been plenty of legitimate stories about ACA exchanges botching enrollments due to technical screwups, long-delayed data transfers, confusing/contrary communication and so on...but this doesn't appear to fall into any of those categories. Unless some exchange-based error is being left out of both articles, it certainly sounds like nothing in the law itself or within the government exchange was in any way to blame in this instance.

I've been thinking about this for awhile. Dan Mangan is a good healthcare reporter. He's written articles which have been tough-but-fair on the ACA throughout the year that I've been operating this website. I haven't sensed any bias one way or the other from him; when HHS screws up, he calls them on it, but when critics are full of hooey, he points that out as well. He's referenced me and/or interviewed me for a few ACA-related stories over the past 6 months, and when he's quoted me it's been in context/etc., so I know he didn't intend an anti-ACA stance.

To gain some insight into how the ACA plays into Mr. Fougner's story, here's a public twitter exchange between myself, Mangan, Charles Ornstein, Ken Kelly, David Nather, "MedicalQuack" & Chad Terhune (I've cleaned the tweets up a bit to make them more coherent; Note that Nather makes the same point I did):

Charles Gaba: Just read this story. Stupid question: Why bring Obamacare into it? As far as I can tell it's Empire who botched his policy? If the @NYStateofHealth website had the false info re. doctors/coverage, that'd be one thing, but it sounds like it was Empire whose info re. network/acceptance was botched, not the #ACA exchange...or am I missing something?

Dan Mangan: not missing. Happened to be O'care plan, on exchange. But ongoing issue, Some #hix plans lacking transparency or accuracy...Relevance to Obamacare is mandate driving many newbies to #hix who are stymied by issues like this.

Ken Kelly: NY does not allow non-QHPs to be sold at all, so more non subsidy-eligible individuals use the gov't exchange.

Charles Ornstein: Maddening.

Dan Mangan: p.s. @SecBurwell was asked about networks being disclosed on fed #hix today @KaiserFamFound talk

David Nather: But sounds like an insurer problem, not an Obamacare problem.

MedicalQuack: Just sign a contract w/Optum for behavioral care to suppelment, what Kaiser did when they got fined in CA a while back; didn't mean to sound tacky but seeing more and more of that type of activity today out there.

Chad Terhune: Similar gripes in CA so @latimes created statewide database of Obamacare doctors http://fw.to/G321ajC

And there's the larger issue. Whether the exchanges are to "blame" or not, the fact is that, aside from the private-public CO-OPs created under other ACA provisions, the products being hawked on the ACA exchanges are still from the same companies which had to be put on a tight leash in the first place to prevent them from forcing people into bankruptcy via annual/lifetime caps on coverage, denying them coverage in the first place for having a pre-existing condition or dropping them like that the moment they actually need coverage, sometimes after years or decades of cheerfully taking their premium payments.

Yeah, those guys. It's like playing whack-a-mole. They've been told that they have to spend 80% of the premium on actual healthcare; they can't ask your medical history; they can't charge you more for being female; they can't drop you as long as you're actually paying up, and so on and so forth...so that leaves other stuff which may not be covered (or enforced properly?) by the law...such as "narrow networks" or, in this case, (allegedly) flat-out false participating doctor information.

On the other hand, it's conceivable that some of the doctors in question did take this policy a few months earlier but stopped accepting it later (in at least one case the doctor simply had stopped taking on new patients).

So...what exactly is the responsibility of the exchange, what's the responsibility of the insurance provider, what's the responsibility of the healthcare provider (hospital/doctor/etc) and what's the responsibility of the enrollee?

The point about "newbies" being driven to the exchanges by the ACA mandate is a valid one. Just how much research or due dilligence are people supposed to do before enrolling? Should Fougner have found his new physician and confirmed that they'd not only take him on as a new patient but would also take his insurance before committing to that particular policy? Or is that an unreasonable threshold to ask of him?

What about the exchanges? The policies sold on the exchanges have to meet certain minimum criteria...but what good is all of that if there aren't any doctors who happen to accept it? Should there be (or are there already, for that matter) requirements about a minimum number of physicians in a given zip code taking a plan for it to be allowed on the exchange? What if those doctors happen to retire or move?

I have no idea what Fougner's prior coverage situation was. Perhaps he should have known better, or perhaps he's never had to enroll in private health insurance before. I know that a year ago, before I started this website, what I knew about health insurance could fit on a postcard (my wife knew the right questions to ask when we enrolled, but I knew bupkus)...and I'm a college graduate, my dad was a doctor himself and my mother was his office manager.

The point is that even if the exchanges were working perfectly and the insurance companies were angels, there's still all sorts of stuff that most people don't understand. Networks. Co-pays. Premiums. Deductibles. Bla, bla bla...and obviously there's plenty of people willing to take advantage of the confusion.

Heck, consider this bit from my piece on Wal-Mart just the other day, from anonymous brokers in an industry forum discussing their experience with selling insurance in Wal-Mart stores:

I mainly said yes, to work Walmart for ACA, thinking it would be like taking candy from a baby. It wasn't. Lot's of too poor, no english, no job, no tax return folks. 

...Walmart sales are location, location, location. Blue collar town with a lot of SS only recipients are gold for MAPD's. Lots of well off retirees and ex-military, not so much. Lot of them have TriCare and Supps paid for by their former employers. 

We're not exactly talking about Florence Nightingales here.

In closing, this is pretty much the main reason why I'm a strong advocate of single payer healthcare. There are some financial decisions where the "Google Play Store," Wild West model of allowing pretty much anyone onto the playing field and letting the buyer beware is fine. There are others where the "Apple iTunes Store" makes more sense--A curated market with extremely strict guidelines about every aspect of the product offerings.

The problem with the ACA exchanges is that they're trying to walk a tightrope between the two.