New Federal Interagency Strategy Provides Opportunity to Advance Food Waste Reduction Efforts

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste. As FLPC wrote in an earlier blog post, this strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. This post outlines several actions that the federal agencies can take within these priority areas to maximize food waste reduction.

Priority Area 1: Enhance Interagency Coordination

The strategy’s first priority area calls for improved coordination between EPA, FDA, and USDA in order to maximize resources and avoid redundant efforts. FLPC has long advocated for improved interagency coordination on the issue of food waste. Food waste is often left out of the calculation when policies are developed simply because it is not on the radar of decision makers. Better coordination among agencies can ensure that measures to address food waste are included in relevant federal programs, such as conservation programs and food assistance programs.

FLPC has also been an advocate for enhanced coordination across the food system more broadly. In February 2017, FLPC and the Center for Agriculture and Food Systems at Vermont Law School published a report proposing a national food strategy that would require a coordinated approach to policymaking and regulation of the food system. We are pleased to see the federal agencies recognize the need for improved coordination and hope that their efforts around food waste can serve as a template for other areas of the food system.  

Priority Area 2: Increase Consumer Education and Outreach Efforts

Recognizing that many consumers do not know about the issue of food waste, the second priority area proposes the development of a consumer education campaign by the federal agencies in partnership with public and private sector entities. According to ReFED, consumer education campaigns are one of the top two most cost-effective food waste solutions and have the greatest overall diversion potential at 584,000 tons. In the United Kingdom, a similar national education campaign led to a 21% reduction in consumer food waste over five years and had a 250 to 1 benefit-cost ratio.

Several national consumer education campaigns, such as the Save the Food campaign created by NRDC and the Ad Council, already exist in the U.S., as do various local, state, and regional campaigns. Federal government support can build on existing campaigns like Save the Food and utilize their research and materials to help ensure that the information is disseminated more widely and better incorporated into other relevant federal programs and materials.

Priority Area 3: Improve Coordination and Guidance on Food Loss and Waste Measurement

Priority Area 3 proposes enhanced coordination and guidance on food waste measurement in order to help refine food waste reduction goals and better report on progress. Data on food waste trends can help government entities, businesses, and other stakeholders identify the most effective solutions and track progress over time.

States and localities have been at the forefront of efforts to measure food loss and waste. For example, the Oregon Department of Environmental Quality, in partnership with Portland State University’s Community Environmental Services, is conducting a five-part Wasted Food Measurement Study that will look at the amount of food waste generated in the state and seek to identify drivers of food waste. In addition to coordinating among federal agencies and developing voluntary guidance on best practices, the federal government can advance food waste measurement efforts by providing funding to support state studies and initiatives to measure food waste.   

Priority Area 4: Clarify and Communicate Information on Food Safety, Food Date Labels, and Food Donations

The fourth priority area seeks to reduce confusion by providing guidance on food date labels, food safety, and liability protections for food donation. Federal action to streamline and provide clarity on each of these topics is consistent with longstanding FLPC recommendations.

Date Labels

Confusing date labels result in unnecessary food waste among consumers and in the retail sector. Because of a lack of federal law standardizing date labels, date labeling language varies from state to state and across food products, and date labels generally have no relation to a food’s safety. Yet 84 percent of consumers report discarding food close to or past the date on its package. Federally-standardized date labels are the most cost-effective solution to food waste according to ReFED and have the potential to divert an estimated 398 thousand tons of food waste.

Important steps have been taken in recent years to reduce consumer confusion by encouraging the use of standard date labeling terms to indicate quality and safety. In particular, FLPC applauds USDA’s industry guidance, which encourages manufacturers to use the standard term “Best if Used by” to indicate product quality. We have also been excited to see industry action to standardize date labels, most notably the voluntary Product Code Dating Initiative. Launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA), this initiative encourages businesses to use only one of two standard phrases on any food product: “BEST if used by” for products where it is an indicator of quality, and “USE by” on products that may have a safety risk over time. However, due to conflicting state laws and the voluntary nature of this initiative, universal adoption of these voluntary standards cannot happen without federal action. Therefore, the federal agencies should work with Congress to support federal legislation to standardize date labels; alternatively, FDA and USDA can require the use of standard date labeling language on products within their jurisdiction through regulations. Once labels are standardized, the three agencies can work to educate consumers to make better decisions and waste less.

Liability Protections

The Bill Emerson Good Samaritan Food Donation Act provides strong liability protection to food donors and nonprofit organizations that distribute donated food. Yet many food retailers, restaurants, and manufacturers still cite liability as a barrier to food donation. The federal agencies can promote food donation by raising awareness of the liability protections available under the Emerson Act. Additionally, USDA can provide clarity on ambiguous terms in the Act by developing guidance on the scope of the available protections. These actions are consistent with provisions in the 2018 Farm Bill instructing USDA to create guidance on elements of the Emerson Act and to raise awareness of the liability protections provided by the Act. With the focus on this topic as part of the interagency food waste strategy, FLPC hopes to see agency action to clarify and raise awareness about this important protection so that donors are encouraged to donate safe, surplus food. We also hope that the agencies will support efforts to enhance Emerson Act protections to better align with the modern food recovery landscape, such as the Food Donation Act of 2017 or similar efforts.

Food Safety

Another key barrier to food donation is confusion about what safety procedures are required for food donation. A fifty-state survey of state food safety officials, conducted by FLPC and the Food Safety for Donations Working Group, found that one reason for this confusion is that most states and localities do not have regulations or guidance on this topic. Most states and localities use the FDA Food Code, a model code developed by the Conference of Food Protection, as the basis for their food safety regulations for restaurants and retailers. Because the FDA Food Code does not include information about food donations, very few state or local regulations address this topic. The agencies, particularly FDA, can support safe food donation by creating guidance for restaurants and retailers on food safety practices for food donation; this guidance could be part of the FDA Food Code or separate. FDA can also create similar guidance for food facilities.

Priority Area 5: Collaborate with Private Industry to Reduce Food Loss and Waste Across the Supply Chain

The fifth priority area calls for collaboration between the federal government and the private sector. Food businesses have been leaders in food waste reduction efforts, with many adopting food waste reduction goals and implementing practices to reduce food waste in their operations. Yet limited data exists on the scope of these goals and the impact they have made. The federal agencies can help advance private sector initiatives by working with food businesses to collect, analyze, and report information about their efforts and their progress towards their goals.

Priority Area 6: Encourage Food Waste Reduction by Federal Agencies in their Respective Facilities

The final priority area seeks to position federal agencies as leaders by example, by encouraging federal agencies to reduce food waste in their own cafeterias and events. The Federal Food Donation Act of 2008 represented an important first step in this direction; the Act encourages executive agencies entering into food service contracts above $25,000 to donate excess food. Agencies must include clauses in their contracts encouraging the contractor to donate surplus food to the extent possible. However, the Act does not actually require the agencies or their contractors to donate, or even to report on the amount of food that is donated. FLPC has made recommendations to strengthen this Act by requiring federal agencies to report on the amount of food they donate and requiring contracts to include language mandating that contractors take steps to donate surplus food.

EPA, FDA, and USDA can model the federal government’s commitment to food waste reduction by including provisions in their own food service contracts that require the contractors to enter into agreements with food recovery organizations to donate excess food. The agencies can also commit to taking steps to reduce the amount of food waste generated in their cafeterias, and to sending excess food that is not edible to organics recycling facilities to the extent possible. Finally, the agencies can commit to collecting and publicizing data on the amount of food that they donate and recycle. 

FLPC is thrilled to see the agencies begin to take coordinated action on food waste, and we hope to work with the agencies and other stakeholders to implement some of these next steps.

 

The Truth About Expired Food: How Best-Before Dates Create a Waste Mountain

Originally published April 18, 2019 by The Guardian. Written by Dale Berning Sawa.

It started in October 2016, when Scott Nash, founder of the Mom’s Organic Market chain of grocery stores, wanted to make a smoothie. He likes his with yoghurt. As he was at his holiday cabin in Virginia, though, the only pot he had to hand was one he had inadvertently left behind on his last trip there, six months earlier. He opened it. No mould, no smell. He decided to take the plunge and dumped the yoghurt in the blender. “I drank and waited,” he wrote on his blog. And nothing happened.

Nash had always been averse to wasting food, but now he started documenting his experiences. He whipped up cream to use, uncooked, almost four months past the date on the carton, and stirred artichoke lemon pesto through pasta seven and a half months in. There was also minced beef (15 days old), smoked trout (24 days past sell-by), smoked turkey (six weeks past use-by), chicken broth (more than three months past best-before), roasted tomatoes (seven months past sell-by) and tortillas (practically a year old). Still nothing happened. It raises the question: were the dates just wrong? Have more compliant people the world over been binning perfectly good food this whole time? Should we be eating expired goods?

The first thing to point out is that Nash is based in the US, where regulations on food dating differ significantly from those in the UK. While British foods carry just one date – either “use by” or “best before” – Nash was confronted by “expiration, use by, best by, sell by, best if used by …” He sells food for a living, and even he doesn’t understand the system. And while fresh chicken and fish went bad exactly when the dates suggested they would, dates on everything else seemed arbitrary. “I don’t think any of them are rooted in reality,” he says.

Nash points out that even things that aren’t food – baby wipes, toothpaste, soap, lotion – are dated, as are jarred and canned goods. A specialist from the US Department of Agriculture’s food safety and inspection service (FSIS) told the food website the Takeout in February that as long as a can is kept in good condition (ie, it is not swollen, rusting, leaking or heavily dented), its contents are safe to eat, for ever. “They will never make you sick,” she said. The FSIS’s own website, however, appears to contradict that advice, stating in its shelf-stable food-safety guidance that there are limits to how long canning will preserve food.

Clearly, this lack of clarity has implications for both the health of the environment and the health of the nation. What you don’t eat, you’ll end up binning, even if you could have safely eaten it; and what you don’t know not to eat could make you sick.

A joint report from the Natural Resources Defense Council and Harvard Law School in 2013 said that 40% of American food goes uneaten each year, and the disorienting effect of the US date labelling system is in large part to blame. At the same time, said the report, that system fails to convey important food safety information, “despite the appearance of doing so”.

 

Yet date labeling has been accused of generating both confusion and food waste in the UK, too, or of simply being ignored. As recent research by the makers of the food-waste app Too Good To Go shows, British home cooks threw away a whopping 720m eggs in 2018, with one in three saying they will bin any carton that is out of date. Yet eggs in the UK carry a best-before date, not a use-by.

All those discarded eggs show that most people still don’t understand the difference. If 74% of respondents to a 2016 Women’s Institute (WI) survey knew that “use by” was about safety, only 45% knew that “best before” wasn’t. The waste reduction charity Wrap has found that as much as 30% of the food binned for being “past date” had a best-before; ie, it probably didn’t need to be binned. And we throw away an awful lot of food in the UK: upwards of 7m tonnes a year. Clearly, understanding dates is crucial.

Andrew Parry of Wrap says that a lot of thought goes into how a business decides on a date: what something is made of; where and how it is made; how hygienic the space in which it is made is; how consumers will treat it; how cold (or not) their fridges will be. Wrap’s research has found that only one in three of our fridges is cold enough (at 5C or lower); a degree can shave a day off the life of something. And then there is the question of liability. The microbiological risk assessment that products have to go through is hefty; businesses have to provide “robust evidence”, says the Food Standards Agency (FSA). So, sometimes a very conservative use-by date is, as Parry puts it, just a business being overly cautious. Nash thinks businesses might be being more than cautious: “At best [those dates] are a neurotic, cover-your-ass thing; at worst, it could be planned obsolescence.” The food industry is in the business of selling you food, after all: the more you throw away, the more you’ll need to buy. Parry agrees that manufacturers’ main job is to sell food, but says that for the most part they actually want the longest shelf-life possible.

He, along with WI vice-chair Ann Jones, the British Nutrition Foundation and the FSA are categorical: as a consumer, you don’t ignore a use-by date. The pathogens that cause food poisoning, from listeria (which the NHS states is found most commonly in things such as butter, cooked meats, smoked salmon and certain soft cheeses) and salmonella (meat and poultry, eggs) to campylobacter (raw milk, raw chicken) and E coli (meat, raw dairy, raw leafy vegetables) are undetectable without a microscope. Even when these bacteria have grown to dangerous levels, food could still look and smell just fine.

Wrap surveys businesses to check whether they’re “absolutely sure” (as Parry puts it) that their products need to carry a use-by date. It has had notable success with hard cheeses and fruit juices – more than 95% of each now have best-before dates after the tech guys in each sector did new tests and realised they didn’t need use-by dates. Which means, as a harried home cook, you are no longer on the clock to use them up quickly or face sending them to landfill. You can just use your nose.

Harvard University Implements New Food Standards to Promote Sustainability and Health

In April 2019, Harvard University officially implemented Harvard’s Sustainable Healthful Food Standards. The Standards were led by the Office for Sustainability, with input from a multi-disciplinary faculty committee (including FLPC Director Emily Broad Leib), the Council of Student Sustainability Leaders, and experts in the field.

The Standards are informed by research and designed to measurably increase access for students, faculty, and staff to more sustainable and healthful food offerings. The creation of the Standards focused on multiple issue areas: climate and ecosystems, consumer well-being, education and food literacy, reduction of wasted food, the welfare of animals, and the well-being of communities throughout the value chain. In addition, they aim to enhance food literacy and to optimize the impacts of food choices on people, animals, and the planet. With these standards, Harvard University seeks to:

  1. Align food providers around a shared vision and common set of evidence-based aspirations and principles.
  2. Quantify the environmental and health impacts of the campus food system through reporting.
  3. Optimize the campus food system for well-being, climate and community.
  4. Drive changes in the marketplace through partnerships and by leveraging purchasing power.
  5. Enhance food literacy across the Harvard community, and beyond.

FLPC applauds Harvard University for its commitment to improving the health of its students, staff, and the planet, and was happy to lend its expertise to the development of the standards, and to the creation of the standard for food waste reduction. The Standards recommendations for the reduction of wasted food, based on a research project by FLPC staff and students, include implementation of practices to motivate patrons across the Harvard campus to divert wasted food from the landfill and incineration; reduction of food waste at the source; diversion for consumption by humans (e.g., food donation); diversion for agricultural and industrial uses; composting, land application, and digestion; the creation of a system to track wasted food with report at least twice a year; and the creation of an on-going, formal relationship with a local food donation partner.

FLPC looks forward to supporting the University in implementation of these standards, both through future student research and work, and through Prof. Broad Leib’s ongoing membership in the Standing Food Standards Committee, which will monitor implementation.

Learn more about Harvard’s Sustainable Healthful Food Standards in a recent Harvard Gazette article.

Federal Agencies Announce Interagency Strategy to Address Food Waste

On Tuesday, April 9, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) released an exciting new interagency strategy to reduce food waste.  This strategy is the first time these agencies – or any federal agencies – have created a coordinated plan to attempt to reduce the 40% of food that goes to waste in the U.S.

The strategy identifies six priorities on which the three agencies will coordinate. Several of these priorities align closely with longstanding FLPC recommendations, including clarifying information on food safety, date labels, and liability protections for food donations; increasing consumer education; and encouraging food waste reduction by federal agency facilities. The agencies developed this strategy based on information and recommendations from several resources. Notably, the strategy mentions among the resources used in its creation Don’t Waste, Donate: Enhancing Food Donations through Federal Policy, a report published by the Food Law and Policy Clinic and the Natural Resources Defense Council in 2016.

FLPC applauds the federal agencies for taking this important step to coordinate efforts on reducing food waste. We have been excited to see momentum forward in the past few years on food waste reduction; for example, the 2018 Farm Bill passed in December 2018 includes food waste resources and funding for the first time ever, and the Trump administration recently announced that April will be “Winning on Reducing Food Waste Month.” In addition to the federal momentum, FLPC tracks state legislation and found more than 100 bills introduced in 30 states in the 2017-18 legislative session. All of this forward progress is promising, as there is much work to do. We look forward to working with the USDA, EPA, FDA, and with other stakeholders, as they implement this strategy.

For more information, see this press release. Read the full interagency strategy here.

Battle Over Affordable Care Act Resurfaces

Originally published by Healio on April 9, 2019. Written by Janel Miller.

Legal and political battles have put the fate of the Affordable Care Act, and health care for millions of Americans, back into the spotlight and ensure that it will play a pivotal role in the 2020 elections.

Last week, the Justice Department submitted a two-sentence letter to United States Court of Appeals for the 5th Circuit in which it stated that the Court of Appeals should affirm a December 2018 Texas District Court opinion holding the entirety of the Affordable Care Act to be unconstitutional. In 2018, under then-Attorney General Jeff Sessions, “the Department of Justice declined to defend the ACA in this case but did not go so far as to argue the entire law is unconstitutional,” Amanda C. Pustilnik, JD, a law professor at the University of Maryland, told Healio Primary Care Today.

“Now, under current-Attorney General William Barr, the Justice Department has endorsed the 2018 decision and will file a brief urging the appellate court to affirm the lower court’s complete invalidation of the ACA,” she continued.

The consequences of the circuit court concurring with the district court could be dire, according to Michele Goodwin, JD, the University of California Irvine School of Law Chancellor’s professor.

“The ACA would be completely eliminated, which would also remove some of the constitutionally-protected principles within the ACA. For example, the term ‘pre-existing’ would become whatever insurance companies want it to be, such as a second pregnancy, a recurrence of cancer, or other similar medical scenarios,” she said in an interview.

Robert Greenwald, JD, faculty director of the Center for Health Law and Policy Innovation at Harvard Law School, concurred with Goodwin on the consequences of the ACA repeal.

“If the lower court’s decision is affirmed, it would topple the entire ACA, including provisions entirely unrelated to the individual mandate such as the expansion of the Medicaid program. This would do untold damage to our health care system. It would leave over 20 million additional people uninsured,” he said in an interview.

Goodwin said historically United States Court of Appeals for the 5th Circuit usually leans conservative when rendering decisions, but that does not necessarily mean history will repeat itself.

Greenwald said he was “cautiously optimistic” the United States Court of Appeals for the 5th Circuit will keep ACA in place, since the district judge’s ruling has no legal footing to stand on.

“The Texas decision flies in the face of the severability doctrine that requires judges to leave what Congress did as undisturbed as possible. Congress could have eliminated any other part of the ACA in addition to the mandate or all of the ACA, but chose not to. The ACA has survived many challenges. This brief is not going to be the instance that takes the ACA down,” he said.

Many conservative legal analysts and the Republican Attorneys General of Montana and Ohio have criticized the legal underpinnings of the Texas District Court ruling, and have filed amicus briefs with the United States Court of Appeals for the 5th Circuit opposing the decision, according to NBC News.

However the Court rules, appeal to the Supreme Court is likely, where the ACA would face a more conservative bench than it faced in previous decisions.

“Chief Justice John Roberts has already presided over two cases in which a majority of the court held the individual mandate to be constitutional. Neither Justice Roberts nor the two new justices, Neil Gorsuch and Brett Kavanaugh, believe it is the role of judges to legislate from the bench,” Pustilnik said. “Perhaps these justices will resist being used as a tool in the political strategy of repeal and replace, which is the job of Congress, not the courts.”

Medical societies respond

The Justice Department’s action prompted many medical societies to renew their concerns about the potential fallout from a complete repeal of the ACA without replacement legislation in place.

The AMA, American Academy of Family Physicians, ACP, AAP and the American Psychiatric Association collectively filed an amicus brief with the Court of Appeals “in defense of significant coverage gains and key patient protection provisions of the ACA,” according to a press release.

Barbara L. McAneny, MD, AMA president, said that the district court ruling being upheld “would wreak havoc on the entire health care system, destabilize health insurance coverage, and roll back federal health policy to 2009.”

These societies argued that the District Court decision would no longer allow children to remain on their parents’ insurance plans until they turn 26 years of age, would allow insurance companies to generate higher profits at the expense of coverage and payments for services, would eliminate need-based subsidies as well as federal funding for Medicaid expansion and Medicaid eligibility expansion and would reinstitute annual and life-time dollar limits.

The American Cancer Society Cancer Action Network, American Heart Association, American Liver Foundation, American Lung Association, Arthritis Foundation, COPD Foundation, Crohn’s & Colitis Foundation and National Psoriasis Foundation were among 26 societies that issued their own statement that expressed concern if the district court decision was upheld.

Read the full article online.

 

Why the FDA is Considering a ‘Healthy’ Icon for Food Packaging

Originally published by Pacific Standard on April 2, 2017. Written by Emily Moon.

For years, consumer advocates have complained that food packaging misleads American consumers by conflating nutrient content with health. The Food and Drug Administration has proposed yet another message to help clear up this confusion: an agency-approved icon signifying that an item is indeed “healthy.”

Last week, the agency’s outgoing Commissioner Scott Gottlieb said the FDA was still debating how to define “healthy” and would likely issue a rule this summer, in an interview first reported by Politico. According to Gottlieb, the icon’s look remains unclear. “There’s sort of rigorous debate going on about whether or not we include the FDA logo in the logo,” he said on Thursday, according to the agriculture news service The Hagstrom Report. What do we know about debate over this proposal, aside from the design challenges?

U.S. CONSUMERS ARE SUCKERS FOR FOOD LABELS

Consumer advocacy groups like the Center for Science in the Public Interest have long argued that lack of regulation has enabled “food labeling chaos.” They say companies have been allowed to market their products using words like “natural” or “heart healthy” without providing evidence, thereby misleading and even deceiving the public.

WOULD REGULATION HELP?

Many public-health experts argue that blind faith in labels is a bad thing. Under the existing regulatory approach, the FDA distinguishes between claims about an item’s health, its nutrient content, and its function, requiring varying amounts of evidence for each. For example, a company can claim that “calcium builds strong bones” on a gallon of milk, but it can’t claim that the calcium in that milk would remedy a health-related condition without “significant scientific agreement.”

But as a study published this month notes, consumers do not evaluate these messages in the same way the FDA does, often giving more credence to the least regulated claims. “Research indicates that consumers cannot differentiate among different types of claims or distinguish the level of evidence supporting them, and consumers actually find structure/function claims more convincing than health claims,” New York University public-health lawyer Jennifer Pomeranz wrote in the study, which lists the Center for Science in the Public Interest’s president as co-author.

Before announcing his resignation, Gottlieb was overseeing the FDA’s most recent efforts to update this system. In June of 2018, he announced that the agency would focus on closing what some consumer advocates see as a regulatory gap: the definition of “healthy.”

Currently, the FDA bases its definition on a food’s nutrient and fat content, according to guidelines first established in 1993, giving rise to what New Food Economy staff writer Sam Bloch has called a “famously nebulous definition.” Gottlieb admitted as much in a statement announcing plans to revisit “healthy” last year: “People don’t eat nutrients,” he said. “They eat foods. And foods need to be assembled into diets that give people proper nutrition.”

In a bid to make the definition of “healthy” more science-based—and communicate that evidence to consumers—the agency issued a new guidance to food manufacturers in 2016.

Both industry groups and public-health experts weighed in: Emily Broad Leib, director of the Harvard Law School Food Law and Policy Clinic, wrote in a 2017 comment in the Federal Register that the current approach “leaves room for food companies to argue that their use of ‘healthy’ should not be regulated.” The Center for Science in the Public Interest has already criticized some of these arguments, including an organic egg company that petitioned the FDA for its products to be considered “healthy.”

The FDA has taken little action since extending the comment period to this guidance in 2017, but its efforts will undoubtedly outlast Gottlieb, who has said he will be departing this month.

 
 

Unwelcome Surprises: Despite Law, Mississippians Still Receive Unexpected Medical Bills

Originally published by the Northeast Mississippi Daily Journal on Sunday, March 31, 2019. Written by Michaela Gibson Morris.

Across Mississippi and the country, people are finding unwelcome surprises in their mailboxes.

Medical bills they expected to be largely covered by their health insurance arrive with a much bigger payment due. They find out that the emergency physician, pathologist, anesthesiologist or radiologist that cared for them was not in their insurer’s network even though they sought care at an in-network hospital and often had no control over who provided the care.

“From a consumer standpoint, there’s the physical trauma and then the financial trauma,” said Roy Mitchell, executive director of the Mississippi Health Advocacy Program. Mississippians have more legal protection than many across the rest of the country. If the health care provider accepts payment from their insurer, it is illegal for them to seek payment from the patient beyond their copayments and deductibles, a practice called balance billing. But some medical providers are ignoring the law, Mitchell said. Many consumers don’t compare the medical bills to the explanation of benefits they receive from their insurer and never realize they were paying more than required.

Mitchell suspects his agency, which offers free assistance to consumers on balance billing, is seeing only a fraction of the actual balance billing cases. A Mason-Dixon poll of Mississippi voters found that 40 percent had received a surprise medical bill for themselves or within their family. “It’s the tip of the iceberg,” Mitchell said. “This is happening, and consumers aren’t aware of their rights.”

Nationally, a report by United Healthcare estimated more than a quarter of emergency visits at in-network facilities resulted in out-of-network physician charges in 2017. The Mississippi Insurance Department’s consumer division is interceding in balance billing cases where they can, said Commissioner Mike Chaney. They’ve found that most providers are willing to resolve the issue when contacted by their office. “The insurance companies are not the bad guys,” Chaney said. “Most of the doctors aren’t either.”

In the crossfire

Patients are getting caught between the lines. Insurers have been tightening reimbursements to rein in health care costs to keep rates low and maximize value for shareholders. Hospitals and physicians are pushing back to have adequate resources to provide care now and in the future.

Stacy White is among those caught in the middle. Her husband was injured in an lawnmower accident in August. The Lee County woman took him for emergency care at NMMC, which is in-network for the insurance her employer provides through United Healthcare. What they initially thought was a dislocated shoulder turned out to be a broken bone that required surgery to repair and physical therapy to rehabilitate. A data company working with United Health alerted White that the emergency physicians who cared for her husband were out of network, and she should be at risk of being billed for more than she was responsible for. “There were so many bills rolling in from so many different places, I wouldn’t have been vigilant without the letter,” White said.

When the bill came from the Relias emergency physician group, it asked for $2,700; United said she was only responsible for about $250. That began a frustrating round of calls with Relias’ billing company and United Health. White was told to call her insurer to address the inadequate payment. She tried to pay her portion, but the payment was rejected. She filed a formal dispute in January “I don’t want this to go into collections,” and jeopardize her family’s credit scores, White said. The case was resolved this week after it was brought to the attention of the Relias group’s administration office in Tupelo. “We are incredibly appreciative,” White said Thursday. “Relias has gone above and beyond to make sure this is handled.”

Relias is working through protocols with its billing and coding contractor to better identify those with potential balance billing problems. In the meantime, anyone with balance billing issues should contact Relias’ Tupelo office directly at (662) 432-4106 or via the “contact us” tab on reliashealthcare.com. “We want what is best for the community,” Luke West, chief executive officer of the Tupelo-based Relias group. “It’s never our desire for the patient to carry the burden.”

Relias has resolved every case of balance billing brought to the attention of the group’s administration in Tupelo; they’ve heard from fewer than 20 patients. “We’ve made it right for every patient we know about,” West said. “We’re having to do it on a patient by patient basis.” Since forming in 2015, Relias has been able to secure contracts with all of the insurer networks that include North Mississippi Medical Center except one, West said.

“We’ve been unsuccessful with United,” West said.

United Healthcare, which has a network of nearly 100 hospitals and more than 11,000 physicians in Mississippi, acknowledged it is in active discussions with Relias in hopes of bringing them into the network. The insurer said it is very concerned about the national problem of surprise medical bills and price gouging by a small number of physicians exploiting their out-of-network status.

“We support policy solutions in other states and at the federal level that will end surprise billing and take consumers out of the middle, including use of a benchmark rate based either on Medicare rates or the median contracted rate in a defined geography to determine the amount paid to out-of-network providers,” said United Healthcare director of communications Sarah Bearce in a written statement.

In the dark

Health care providers in Northeast Mississippi point to the complexity of health care reimbursement. If they are out of a patient’s network, providers say they don’t receive any information about portion of the bill a patient is responsible for. They receive an electronic payment from the insurer or third party administrator that may or may not cover the cost of care. “It’s not our intention to balance bill anyone,” West said. “We only know about it after the fact.”

Blue Cross & Blue Shield of Mississippi, the state’s largest private insurer, said it is doing what it can to protect its members from the confusion of out-of-network providers at in-network hospitals. “A requirement of being a Blue Cross & Blue Shield of Mississippi network hospital is all professional services, to include emergency room professional services, must also be (in) network,” said Dr. Tom Fenter, Chief Medical Officer in a written statement. “This has been our requirement, as we see it as the network hospital’s responsibility to ensure our Members receive full network services when they use a network hospital.”

Northeast Mississippi hospital leaders say they are doing what they can to protect consumers. North Mississippi Health Services requires the medical groups it contracts with to provide emergency care, anesthesia, pathology, radiology and neonatal intensive care to seek in network status with the insurers that include NMHS in its networks, said system president Shane Spees. The system is in the process of strengthening those requirements.

OCH Regional in Starkville employs physicians providing emergency care, which means they fall under the hospital’s network agreements. The other physician groups contracted with the hospital are typically in network for the same insurers as the hospital. “There have been rare instances when this has not been the case,” said Susan Russell, OCH chief financial officer. In those instances, the hospital will contact the contracted group to request that the group accept the insurance as if they were in network.

When a patient has out-of-network insurance, Baptist Memorial Health Care typically bills the insurer first. “We … expect them to make a fair and reasonable payment for the services rendered,” said Baptist director of public relations Ayoka Pond in a written statement. “Once a fair and reasonable payment is received from the insurance company, then we bill the individual for the member cost share according to their benefit plan.” Like other hospitals in the region, Baptist does require contracted physician groups to participate in the same insurance networks as the hospital. “However, because they are independent organizations, we’re not familiar with how they handle balance billing,” Pond said.

None of the hospitals have the authority to require participation of private practice physicians who have hospital privileges to care for patients, but are not employed or contracted.

Magnolia Regional Health Center in Corinth did not submit answers to Daily Journal questions for this story.

Solutions

Mississippi’s balance billing law was groundbreaking in 2013, but needs to be updated, according to a report from the Harvard Law School Center for Health Law and Policy Innovation.

The report, issued in March, offers three recommendations:

  • Clarify enforcement authority over balancing billing,
  • Prohibit providers from reporting surprise medical bills to creditors,
  • Establish transparent, reasonable payment standards for out-of-network providers that operate at in-network facilities along with a clear, fair process for resolving payment disputes between providers and insurers.

There’s been tremendous push back against amending the balance billing law, Mitchell said. A bill proposed this year didn’t even get out of committee. “Our current law needs updating,” Mitchell said. “As advocates, we are very concerned about the situation.”

Allowing the state or federal government to set reimbursement rates is not a good solution, Spees said. Insurers and health care providers do need to be on more even footing. “The current (balance billing) law favors payors,” Spees said. In some cases, out-of-network insurers are avoiding contracts, so they can unilaterally set payments, Spees said. If the hospital or medical provider rejects the payment as too low, the insurer sends a check to the insured, making it their responsibility to pay the entire bill.

“They’re gaming the system,” Spees said. “There’s no incentive for the insurer to negotiate.”

Spees would like to see insurers’ networks more closely scrutinized for adequacy by federal regulators, who oversee the Medicare Advantage plans.

The reality is that private insurers cannot continue to carry the load for the entire health care system, Chaney said.

Yet if hospitals and providers aren’t adequately funded, they can’t keep their doors open.

“As insurers and providers continue down this road, there’s going to have to be more collaboration,” West said. “There has to be middle ground to do what’s best for the patient.”

 
 
 

Boston City Council Passes Good Food Purchasing Program

Last month, the Boston City Council unanimously voted to adopt the Good Food Purchasing Program (GFPP). GFPP requires the city to meet certain requirements for nutrition, sustainability, animal welfare, and labor, when making food purchases. This policy applies to purchases made by all city agencies, and will have the greatest impact on the Boston Public Schools, which spends approximately $18 million per year on food. GFPP helps ensure that this money is used to purchase healthy food and to support sustainable and responsible producers.

GFPP was developed by the Center for Good Food Purchasing, which helps manage the adoption and implementation of GFPP by cities and institutions. According to the Center, seven GFPP policies have been passed to date at the local or institutional level.

Boston’s ordinance goes beyond the other cities, and includes particularly strong language around racial equity. The ordinance seeks to support vendors that invest in disadvantaged communities — for example, vendors that hire disadvantaged community members, are women- or minority-owned, and pay all workers living wages — by awarding these vendors bonus points in the review process for purchasing contracts.

Boston’s policy also includes robust provisions to increase transparency in the food purchasing process. FLPC worked with a coalition of local advocates to strengthen the language in order to increase opportunities for the public to have their voices heard during the procurement process. We were thrilled to see the Boston City Council adopt language to establish public hearings on purchasing recommendations and require the public release of certain materials related to purchasing, such as vendor proposals and the agency’s evaluations and recommendations of these proposals. The Boston ordinance also creates a Community Advisory Council that will assist with the implementation process.

FLPC looks forward to continuing to work with local stakeholders and with the City of Boston towards implementation of the GFPP, and applauds Boston City Council for this exciting new legislation!

For more information about Boston’s adoption of the GFPP, see the press release.