Congress Likely to Punt Surprise Billing Legislation to 2020

Kerry Dooley Young

December 17, 2019

WASHINGTON — Congressional leaders likely will delay at least until 2020 their efforts to seriously address the high costs of out-of-network medical care.

As of Monday, it appears federal lawmakers abandoned near-term attempts to protect consumers from what is known as "surprise billing," as confirmed for Medscape Medical News by multiple sources on Capitol Hill and within lobbying groups.

"Surprise billing" refers to cases where people with insurance receive medical treatments, often emergency services, that their insurers do not cover.

For individuals, the consequences of these unexpected gaps in insurance coverage can be devastating, Shawn Gremminger, senior director of federal relations for the consumer group Families USA, told Medscape Medical News in an email.

"Some of these medical bills will literally bankrupt affected families," Gremminger said. "Not getting legislation enacted this year is a bitter disappointment for consumers in desperate need of relief."

Lawmakers hit a political roadblock on surprise billing, despite growing public outrage and researchers' interest in this issue.

The journal Health Affairs on Monday, for example, published a study from Zack Cooper, PhD, of Yale University and colleagues that suggested a path to significant savings by curbing some out-of-network billing.

About $40 billion could be saved nationwide if policies were introduced that precluded four physician specialties — anesthesiologists, pathologists, radiologists, and assistant surgeons — from billing out of network and thus lowered their in-network payments to 164% of Medicare payments, Cooper and colleagues said.

They also noted previous estimates showing more than 20% of visits to emergency departments considered in a patient's network may involve care from an out-of-network physician.

But passing a law on surprise billing likely would force members of Congress to pick sides in a battle that pits insurers against physician groups and hospital organizations. Members of key House and Senate committees earlier this month sought to offer a compromise measure, working to meet what amounts to Congress' only hard deadline for action soon on any major legislation — December 20.

On that day, the current stopgap bill funding federal operations will expire. Lawmakers are working to pull together a new continuing resolution to keep the government running into early 2020. This must-pass bill has long been eyed as a vehicle onto which lawmakers will try to attach other unrelated measures.

The Senate Health, Education, Labor and Pensions (HELP) and House Energy and Commerce committees on December 8 put forward a plan that would establish benchmarks for addressing surprise billing cases. America's Health Insurance Plans (AHIP) has urged Congress to adopt this approach, which California already has used in its state legislation addressing surprise billing, according to a news release.

The HELP–Energy and Commerce compromise measure called for payments pegged to the median in-network negotiated rate for the service in the geographic area in cases of surprise billing.

If the median in-network rate payment were above $750, a clinician or insurer could elect for a form of binding arbitration — referred to as independent dispute resolution. This is the preferred approach of physician and hospital groups, drawing from a model already used in New York.

The HELP–Energy and Commerce model encountered critics in both camps. The Coalition Against Surprise Medical Billing, a group that includes AHIP and other insurer organizations, reiterated its "significant and serious concerns about arbitration being abused by out-of-network providers and private equity firms," in a news release.

"The result of arbitration is that consumers, employers, unions, and taxpayers pay the price," the coalition said in the December 8 statement. "Lawmakers should continue to work to find real solutions that protect patients and save money for taxpayers."

Next Year

The American Medical Association (AMA) and American Hospital Association (AHA) were among the critics taking the opposite approach. On December 10, Patrice A. Harris, MD, MA, president of the AMA, urged Congress to reject the approach favored by the HELP and Energy and Commerce committees.

"The current proposal relies on benchmark rate setting that would serve only to benefit the bottom line of insurance companies at the expense of patients seeking a robust network of physicians for their care," Harris said in a statement. "Rather than rushing to meet arbitrary deadlines, it is important to get this legislation right."

On December 12, the House Ways and Means Committee put forward an alternative plan. It proposed using what it called "private market dynamics" to settle disputes between clinicians and insurers. The AMA said in a statement that it was "encouraged" by this plan.

"The AMA looks forward to working with Congress to find such a fair solution in the new year," the physician group said in the statement on the release of the Ways and Means proposal.

The AHA also urged continued focus on surprise billing, even with the 2020 election likely to prove something of a distraction from legislative work next year.

"The good news: President Trump and Congress want to tackle this issue," said AHA Chief Executive Rick Pollack in a December 13 column posted on the group's website. "The bad news: So far, none of the proposals have hit the mark."

Pollack said the HELP–Energy and Commerce approach would give  "insurers an incentive to remove hospitals from their networks and force artificially low reimbursement rates, which serves to limit access and gives a huge windfall to commercial insurance companies."

"This is hardly the right way to address surprise billing," Pollack wrote. "Even worse: The bill's sponsors are hoping to rush this bill into law by attaching it to end-of-year government funding bills without taking the time to get this policy right."

Pollack asked in closing his column that readers urge their representatives in Congress to address surprise billing in the future.

Moral Test

There also are individual physicians seeking to maintain pressure on Congress to address this issue, but they do not always support the approach favored by the AMA.

Ashish K. Jha, MD, MPH, of Harvard University, published an opinion article on December 9 in the Boston Globe titled "Ending surprise billing: A moral test for physicians." A professor of health policy at the Harvard T.H. Chan School of Public Health, Jha argues in favor of capping how much physicians can charge for out-of-network services.

While noting that insurers may not always negotiate in good faith with physicians, Jha pins blame for surprise billing on physician staffing groups. These firms "exploit patients when they are most vulnerable — in an emergency or under anesthesia," Jha wrote.

"Many of us practicing physicians find the behavior outrageous. We all took an oath to 'do no harm.' To financially ruin our patients when they are sick shows a moral rot in our community," Jha wrote. "If we don't voluntarily stop this practice, Congress will eventually stop us. And shame on us for making Congress do what we should do on our own."

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