Collectors fume over CFPB plan to ban medical debt from credit reports

Bloomberg News

A proposal by the Consumer Financial Protection Bureau to ban medical debt from credit reports is drawing the ire of the financial services industry, which claims not enough has been done to study the root cause of the problematic medical billing: The fractured health care system.

Advocates have been pushing for years for the CFPB to take medical debt off credit reports, claiming millions of consumers are pursued for debts they don't owe or that are inaccurate. In September, the CFPB released an outline of a sweeping proposal to amend the Fair Credit Reporting Act. The plan was announced by Vice President Kamala Harris from the White House, with CFPB Director Rohit Chopra saying that medical debt has "little predictive value in credit decisions."

In comments that closed last week about the proposal, financial firms and trade groups said that if enacted, the plan would restrict lending, increase costs and result in more denials of credit to low- and moderate-income consumers. Experts claim the CFPB's proposal would make credit reports less accurate, increasing risks for lenders. 

"Conceptually, the CFPB is getting into a dangerous place, because they're saying medical debt doesn't have predictive value — and that's not their job," said Kim Phan, a partner at the law firm Troutman Pepper, who focused on privacy and data security. "The industry has the right to decide what has value and what doesn't."

The CFPB said it expects to publish a report in December summarizing the feedback it received on its proposal from small businesses that will include written comments from stakeholders. Next year, the bureau plans to issue a notice of proposed rulemaking that will give the public an opportunity to comment on the plan before it is finalized. 

Phan said that unless the CFPB scales back the proposal or makes changes, she expects the bureau will be sued by a trade group or credit bureau once a final rule has been issued. Taking medical debt off credit reports impacts a consumer's credit capacity, which is one of the seven factors of credit used in underwriting decisions, Phan said. 

"If a consumer earns $30,000 a year and just took on $100,000 of medical debt, their capacity to take on new credit is much more restricted," Phan said.

The CFPB estimates that roughly 100 million people struggle with unpaid medical bills. The scope of the problem is so large that roughly 50 consumer groups banded together to urge the CFPB to take action. 

Chi Chi Wu, senior attorney at the National Consumer Law Center, said consumers get stuck with unpaid medical bills for many reasons, though the majority are due to an insurance company denying a claim, paying only part of a claim or a health care provider demanding payment. 

"Medical bills are complicated and bizarre and bureaucratic because, unlike a credit card, where the consumer has bought something, a third party is involved in the payment process," said Wu, who is the lead author of the legal manual Fair Credit Reporting. "Everybody knows the health care system in this country is a mess. Consumers are asking why they got a bill when the insurance company was supposed to cover it."

Still, collectors say that taking medical debt off credit reports does not tackle the underlying problems with medical billing disputes. Consumers will still owe the debt and the CFPB will be taking away a traditional tool that creditors use to spur debtors to pay: The threat of nonpayment that impacts a consumer's credit score.

"Just because the debt is not on a credit report doesn't mean the consumer doesn't have to pay it," said Jennifer Whipple, president of Collection Bureau Services, a family-owned debt collection agency in Missoula, Mont. "The proposal is not addressing the issue the CFPB is trying to fix in terms of people having insurance billing or denial issues or unsupportable health care." 

Earlier this year, the three credit bureaus, Equifax, Experian and TransUnion, agreed to remove medical debts of $500 or less from credit reports, which represented roughly 70% of all medical debts. Debt collectors want the CFPB to study the impact of that change, with a focus on health care providers not being paid, before removing the remaining 30% of medical debts still on credit reports.  

"It's too important an issue not to study and not to use data-driven analysis," said Scott Purcell, CEO of ACA International, the trade group for collectors and creditors.

CFPB report examines causes of medical debt collection complaints

Whipple, who is the treasurer of ACA, said the CFPB's message to consumers is that they do not have to pay their medical bills because there will be no impact to their credit. That kind of message, she said, could result in some consumers thinking they don't need to pay for health care coverage at all. 

"If the message is that medical bills won't be on a credit report, then consumers may think they don't need to pay a high premium every month or maybe even carry health insurance,"  Whipple said. "Folks on Medicare or Medicaid will think they don't owe the debt and so they may not take the time to fill out the forms to continue to get coverage." 

Banning medical debt from credit reports is just one piece of the CFPB's proposal, which would subject a wide range of companies to the Fair Credit Reporting Act's requirements. The plan also has been criticized for restricting the sale of so-called credit header data by the three main credit bureaus, which some experts say could potentially cut off critical information to law enforcement agencies.

The FCRA requires that information on credit reports to be accurate, and was intended to provide a way for consumers to dispute erroneous information on credit reports and give creditors an unbiased and fungible metric of a borrower's ability to repay. In its proposal, the CFPB said that consumer complaints about medical debt underscore how ineffective, time-consuming and costly the dispute process has become. Legal experts say the CFPB's proposed changes will reverberate throughout the financial ecosystem with unknown consequences. 

"Medical debt is an insurance problem, and to say you can't collect it or report it doesn't solve the insurance issues and it also doesn't help poor people," said Joann Needleman, a practice leader and member of the law firm Clark Hill. 

Wu, at the National Consumer Law Center, said consumers often find out about a medical debt when they try to buy a car or refinance their mortgage and are told that they can't get approved for a loan. 

"Consumers will pay the debt because they don't have time to go back and dispute it," she said.

Andrew Nigrinis, an economist at Legal Economics LLC and a former CFPB economist, said the CFPB did not provide a valid economic analysis of the impact of the proposal. He also said the CFPB's research that found removing medical debt would increase credit scores was hardly a surprise. 

"It's the same logic that if you took away mortgage delinquencies from credit reports, then obviously credit scores would go up," he said. "It's not a profound result."

Medical debt is a major problem for states that failed to implement the expansion of Medicaid under the Affordable Care Act and have a high percentage of uninsured residents. In a study he conducted for the collections industry, Nigrinis found that the loss of predictive information on credit reports would result in more lending to unqualified borrowers, higher litigation costs to collect debts, and lost income for medical providers due to nonpayment of services. 

"The debt collection industry is very competitive and they pass costs on to consumers," he said. "Presumably, debt collection rates would go up and so would costs of financing and denials of financing."

Needleman added that the CFPB "is deciding which debts that a consumer should pay — and that's not their role."