The [un]Constitutionality of the No Surprises Act

If you're a mental health practitioner, you have heard of the sweeping No Surprises Act. The original intent was to prevent hospitals and medical practitioners from continuing the time-honored tradition of financial gamesmanship with patients, who at the time are often under duress and unable to make sound medical and financial decisions, especially in an emergency.

Many critiques and criticisms of the act have been leveled.

The No Surprises Act requires mental health professionals who do not take insurance to issue, in some cases, a Good Faith Estimate (GFE) before the client is ever seen. If actual charges over the course of the year total more than $400 in excess over the GFE, then the mental health practitioner could suffer crushing penalties.

The prevailing wisdom of mental health professional groups is to just keep re-calculating and updating the GFE throughout the year. Sounds a rather daunting exercise for the purpose of trying to produce a correct estimate within the margin-of-error cost of 2-3 sessions over 52 weeks.

What's more, the Good Faith Estimate not only includes the estimated financial burden of a year's worth of counseling sessions, but a diagnosis codes, even before the client is ever seen. (Psychiatry.org)

Every mental health professional knows that they only know what the client tells them. Mental health isn't like physical health where a broken bone can be plainly visible on x-ray, or a concussion evident through the use of an MRI. A mental health practitioner sees a client one hour a week, and bases their entire therapeutic picture on what the client tells them and what they see with their own eyes.

It has happened many times where 6 months in to a therapeutic relationship, a client confesses he's been cheating on his wife the whole time, or he's been an alcoholic for several years, but was too embarrassed to say, or that the client was sexually abused as a child. These delayed disclosures are legion in the career of a mental health practitioner.

Let's take a look at the Zauderer case:

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985)

"We recognize that unjustified or unduly burdensome disclosure requirements [like the GFE] might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonable related to the State's interest in preventing deception of customers."

Except, the GFE requires mental health practitioners to publish information to clients and potential clients alike, some whom they've never even seen, making estimates of things that the practitioner has absolutely nothing on which to base his or her estimate of future financial burden for the client, or the client's diagnosis. How can someone be diagnosed who has not been seen by a practitioner?

The Zauderer opinion states that the State has an interest in preventing the deception of consumers. Tell me, how confusing is it to a consumer to receive multiple (maybe even dozens) of differing estimates in a year about their potential financial burden? And how much more deceptive is it to a client to receive a diagnosis before the client has even been seen by the practitioner?

More from Zauderer:

When the possibility of deception is as self-evident as it is in this case, we need not require the State to "conduct a survey of the . . . public before it [may] determine that the [advertisement] had a tendency to mislead." FTC v. Colgate-Palmolive Co., 380 U.S. at 380 U. S. 391-392. The State's position that it is deceptive to employ advertising that refers to contingent fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed. [Footnote 15]

The case was about deceptive advertising, but the point is made and the logical conclusion holds when applied to the Federal Government requiring mental health professionals to provide information for which they have not even the slightest basis for estimation. As the opinion says, the possibility of deception is self-evident. It's not deliberate deception, but government imposed deception based on not even an educated guess, but on complete and unavoidable ignorance.

One cannot be compelled by the government to engage in speech for which neither the government nor the individual have any basis for the speech. A mental health practitioner cannot under the Constitution be compelled to speech (a diagnosis or good faith estimate of costs) where neither the government nor the practitioner have any basis for an accurate diagnosis or estimate of costs. They're compelling you to say something that is untrue, or that no one, not the government nor the practitioner can verify if it is a true statement, because it's nothing more than a shot in the dark because you know little to nothing of the client's mental health condition.

You have a right under the Constitution of the United States to be silent instead of saying something you know to be false. You cannot be compelled to say something you know to be false. Issuing a diagnosis before you even see a client will be demonstrable false 999 out of 1,000 times. You cannot be compelled to communicate that message.

And as we learned in Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963), which was about licensing, but the same argument can still be made in this case:

And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.

A person faced with an unconstitutional mandate such as telling someone how much their counseling treatment will cost them over the next 52 weeks without actually seeing them first, and issuing a diagnosis code before you see them for their first session is demonstrably unconstitutional. Not only that, if you are found to be fabricating diagnosis codes, you can be charged and found guilty of Medicaid fraud. So in order to follow the No Surprises Act, you're required to commit Medicaid fraud.

Nuts!

It's a catch-22. You're damned if you do, damned if you don't.

Now, as mental health practitioners, our loyalty is to our clients and what is actually best for them. There is great potential to do harm by giving an inaccurate diagnosis to a client, because you're giving an inaccurate estimation of the client's personality and mental health, and clients wear their diagnoses. Tell a client he or she has generalized anxiety disorder, and soon he or she will tell people, "my generalized anxiety disorder."

Another potential for harm is in giving an inaccurate diagnosis early on, then having to go back and tell the client that the first diagnosis was incorrect and you have to give them a replacement diagnosis. That's not going to instill a lot of confidence in your abilities as a counselor. You're harming them, their self concept, and harming the therapeutic relationship.

If it all comes crashing down, and the state comes after you because they heard you didn't issue GFEs to your clients, you have a pretty solid defense: Willfulness.

The state has to prove willfulness or willful intent, but we'll get into that in the next post.