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No significant fiscal implication to the State is anticipated.
HB 1941 would provide that, for a freestanding emergency medical care facility, the provision of emergency care at an unconscionable price constitutes a false, misleading, or deceptive act or practice under the Deceptive Trade Practices-Consumer Protection Act. It would also set the minimum price alleged to be unconscionable for which the consumer protection division may bring an action in the name of the state at 200 percent of the average charge for the same, or substantially similar, care provided by emergency rooms located in the same county or nearest county in which a facility is located.
Finally, this bill would allow the division to request and the trier of fact to award the recover of reasonable attorney's fees and court costs, and the reasonable expenses incurred by the division in obtaining any remedy available through such an action. This bill expressly does not create a private cause of action for a false, misleading, or deceptive act or practice described above.
In a free market environment we would never condone the concept of government deciding what is or is not an unconscionable price. In the free market, unconscionable prices can not stand because consumers will not stand for them and will instead take their business elsewhere.
Health care and health insurance do not operate on a free market system in the United States. These industries are laden with mandates and regulations which have resulted in higher prices, lower quality services, and reduced consumer choice. This system has artificially given insurers a marketplace advantage over providers and consumers. To the extent that insurers abuse this government-created artificial marketplace advantage to take advantage of providers and consumers, the government has a legitimate interest in at intervening to at least somewhat blunt the negative effect of the problems it has created.
If not for government intervention (much of it at the federal level), the practice of balance billing would not happen because consumers would determine it unconscionable and take their business elsewhere. Because consumers do not have the normal range of options they would expect to have under free market conditions, we will remain neutral on HB 1941. Ultimately, the solution to overregulation is not more regulation.
The state should seek to enact wholesale deregulation of the health care and health insurance industries to the extent possible and lobby the federal government to do the same. In the meantime, consumers should consider medishare programs and direct primary care as alternatives to traditional insurance.