Surprise billing reforms look set to be included in year-end spending bill

(Dec. 18, 2020) Congress looks poised to include surprise medical billing protections in a bill to keep the government funded beyond today.

But it’s an open question of whether the provisions will be struck at the last minute.

The down-to-the-wire showdown is a prime example of how incredibly hard it is to reform the United States health-care system in favor of patients – even when everyone agrees they should be protected.

“From insurers to providers to patient groups, everyone agrees it’s not fair for consumers to get these bills,” said Jen Taylor, senior director of federal relations for the patient advocacy group Families USA. “And yet at the end of the day people are putting their bottom line ahead of patients’ needs.”

Senate Majority Leader Mitch McConnell walked to his office on Capitol Hill on Thursday.

Doctors and insurers have been furiously lobbying Congress all week.

Physician and hospital groups are trying to pull the legislation further in the direction they want – even though it already skews toward their preferred solution for resolving surprise medical bills.

These bills – sometimes totaling tens or even hundreds of thousands of dollars – can result when a patient unintentionally gets care from a doctor or hospital outside their health plan’s network. Lawmakers have spent the last two years working on a solution to protect patients from surprise medical bills while guiding insurers and providers on how to resolve them.

The compromise measure, agreed to by GOP and Democratic leaders of four congressional committees, says an independent arbiter decides the payment for such bills when insurers and providers can’t reach an agreement on their own. Insurers have feared the process will leave too much room for providers to extract massive payments for medical services rendered out of network.

Now providers want something more. Lobbyists say they’re pushing for a ban on the arbiter considering Medicare rates in deciding surprise medical bills, although it’s not clear they’ll be successful. Medicare typically pays significantly less for medical care compared with private health plans. Banning arbiters from considering Medicare rates is another way of trying to slant the arbitration process toward higher rates doctors and hospitals would like to charge.

The American Medical Association surprised many this week when it came out against the measure altogether.

“We oppose enactment of the bill in its current form because it would significantly disadvantage already stressed physician practices, particularly small physician practices,” the AMA wrote in a letter to Congress.

The announcement raised questions about whether the AMA would support any surprise billing reforms if won’t support this one.

Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy

Shawn Gremminger, director of health policy for the Pacific Business Group on Health

“We have explored policy solutions ad nauseum and the reality is nobody wants to foot the bill for changes to the system,” Taylor said. “In the meantime, patients are the ones who have taken the hit and that is unacceptable.”

But the legislation might just be “crappy enough” to pass.

As is often the case, the legislation doesn’t fully satisfy the demands of anyone involved in surprise medical billing. But there’s something in the agreement for everyone – patients, insurers and providers – to like.

“It’s just crappy enough for everybody, nobody got everything they wanted,” a lobbyist close to the negotiations told me.

Patient advocates say they’re pleased overall, although they don’t love the arbitration approach.

They’d pushed hard through 2019 for Congress to broker a deal, and then watched in disappointment as chances for reform fell apart at the end of the year. Now they generally support this new agreement – even as some fume privately that it reflects heavy influence by the physician lobby.

The measure mostly protects patients from surprise medical bills. For the first time, physicians and facilities couldn’t charge patients for the difference between in-network cost sharing and total charges, in what’s called balance billing.

The prohibition would apply to emergency medical services at out-of-network facilities and out-of-network providers at in-network hospitals. It would also apply to air ambulances, who were left out of previous iterations of the legislation.

It’s “a major breakthrough for patients looking for relief from surprise medical bills,” said Nancy Brown, CEO of the American Heart Association. “We strongly urge lawmakers to pass this legislation before adjourning for the year.”

The measure places some guardrails around the arbitration process.

These limits are intended to keep doctors from gaming the system. Insurers and patient advocates have cited them as reasons to support the reforms.

The measure places some guardrails around the arbitration process.

For one thing, the third-party arbiter must consider median in-network prices when settling disputes around a medical service or procedure. They’re also prohibited from considering the charges billed by doctors and hospitals. These charges are often widely inflated; stories about patients being charged hundreds of dollars for a band-aid.

The measure also limits when arbitration may occur.

For example, the two parties must first spend 30 days trying to resolve their differences before going to arbitration. Once arbitration begins, the mediator must consider in-network rates for the services under consideration. And there’s a 90-day “cooling off” period, in which the party that brought the dispute can’t initiative another resolution process for the same service.

All in all, the measure protects patients while balancing the concerns of outside parties such as doctors and insurers, Senate staffers involved in the effort argued to reporters earlier this week.

“It cuts both ways,” a staffer for Sen. Bill Cassidy (R-La.) told reporters. “Not having criteria that would be overly beneficial to providers or plans, but helping the arbiter to assess the fair amount to be paid.”

There’s a lot of bipartisan support for the surprise billing agreement.
Cassidy, Sen. Maggie Hassan (D-N.H.) and 25 other senators have begged Senate leaders to include it in the spending package.

Cassidy speaks during a news conference on Monday. Photographer: Sarah Silbiger/Bloomberg

A letter they sent Monday to Senate leaders notes that the measure could save $18 billion, although that estimate is based on scores from the Congressional Budget Office on previous iterations. The funding, the senators argued, could be used to fund Community Health Centers and other primary care programs for four years.
“There will never be a broader bipartisan, bicameral solution to ending surprise medical billing and we should deal with it now,” they wrote. “Patients cannot wait any longer.”

Congress has until midnight to pass a funding bill.

But lawmakers are struggling to resolve their differences over that bill and another coronavirus relief package. Senate Majority Leader Mitch McConnell hasn’t said whether he supports the surprise medical billing agreement, and could easily erase it from any deal if it proves to be a stumbling block.

“Negotiators were hoping to resolve all of their differences and pass matching bills through the House and the Senate by Friday night, in order to marry the stimulus bill with a must-pass government funding package,” Mike DeBonis, Seung Min Kim and Jeff Stein report.

“The funding bill must be signed into law by Friday at midnight in order to avoid a government shutdown. But lawmakers are now running out of time to resolve their differences and could be forced to pass a short-term spending bill to buy them more time, dragging negotiations into the weekend or Christmas week.”

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