UPDATE: Feb. 10, 2020: The House Committee on Education and Labor released its own proposal to stop unexpected medical bills Friday, bringing to three the number of draft bills from the House on the issue. The bipartisan proposal is similar to one from House Energy and Commerce and Senate HELP, but blends in certain transparency elements in the Ways and Means plan.
- The House Ways and Means Committee released the full legislative text of its surprise billing proposal Friday, though its unlikely the country will see any Congressional movement to stop patients from being hit with unexpected out-of-network medical bills during the upheaval of an election year.
- The proposal, spearheaded by Reps. Richard Neal, D-Mass., and Kevin Brady, R-Texas, would require insurers and providers to work out billing contests themselves before bringing in third-party arbitration, a resolution method preferred by the provider lobby.
- It would also require insurers give patients a "true and honest cost estimate" including which providers will deliver treatment as well as the cost and provider network status before a scheduled medical service. Backers are aiming to include the bill in a Wednesday markup and, if passed, it would go into effect in 2022.
The bipartisan Ways and Means plan threw a wrench in the path of White House-backed legislation from the House Energy and Commerce and the Senate Health, Education, Labor and Pensions committees with its introduction late last year. However, its final form is similar to the House and Senate compromise, though it gives providers more leeway in contesting their reimbursement for the unexpected bills.
The White House has said previously it supports the first legislation from Senate and House leadership. But any Congressional movement on surprise billing is likely a boon for President Donald Trump as he tries to defend his record on healthcare to the country during a tumultuous presidential election.
In the Ways and Means legislation, called the Consumer Protections Against Surprise Medical Bills Act of 2020, patients would be held harmless — a facet of each proposed Congressional fix.
Instead, the bill would create a mediated dispute resolution process. If plans and providers can't resolve payment issues themselves, either party can kick off a two-step process: a 30-day open negotiation period followed by third-party, baseball-style arbitration.
The arbiter, who will be mutually agreed upon or randomly assigned, will consider median contracted rates for the specific insurer, along with similar providers, services and geographic areas. They are not allowed to consider usual or billed charges, which is meant to act as a guardrail against providers gaming the arbitration process.
"While I would not have personally chosen arbitration, at first glance, their arbitration (and overall package) looks sensible," Zack Cooper, a health economist and Yale professor, wrote on Twitter.
Bills of any dollar amount can go to arbitration, giving doctors a fair amount of power in contesting what they view as low reimbursement. The previous Trump-supported legislation only allows arbitration if payment is less than $750.
Additionally, the proposal protects patients from balance bills of any amount if their insurer gives them faulty information about the network status of a provider. Plans will also be required to offer an up-to-date price comparison tool for beneficiaries.
People without insurance or paying cash will receive a good faith cost estimate prior to a procedure. If the final charge is higher than that estimate, the bill will go to mediation.
"The Ways and Means approach recognizes the importance of the private market dynamics between insurance plans and providers," Neal and Brady said in a statement.
Doctors and hospitals have lobbied fiercely in favor of arbitration, while payers support set payments capped against something like Medicare rates. Both sides have spent buckets of money in an effort to get Congress on board with their preferred solution.
The bicameral fix from House Energy and Commerce and Senate HELP released in December would require insurers to pay at least the median in-network negotiated rate for the area, but also relies on an arbitration backstop in a bid to pacify both payers and providers. The surprise billing provision failed to make it into year-end spending legislation.
A third House committee, Education and Labor, which also has jurisdiction over surprise medical billing, also released its own bill Friday ahead of a target markup date of Tuesday.
The Education and Labor plan, called the Ban Surprise Billing Act, is very similar to the House Energy and Commerce and Senate HELP proposal, but blends in certain transparency elements in the Ways and Means plan.
Contested dollar amounts lower than $750 will be paid out at the median in-network rate for the area. Payers and providers can send bills higher than that to independent dispute resolution, with arbiters certified by the secretaries of HHS, the Treasury, and Labor.
Arbiters can't consider billed charges in their deliberation, but instead median contracted rates for the service in the geographic area and other information, including the quality of medical care and the market share of both parties.
To avoid surprise bills in the first place, insurers are required to keep their online provider directories up to date; providers and plans have to give patients a good faith estimate of cost-sharing owed for a healthcare service within two business days; and out-of-network providers have to tell patients their network status and give them a good faith estimate of charges for out-of-network care.
Like the Ways and Means plan, if passed, it would not go into effect until 2022.
The leaders of the December proposal, Chairman Frank Pallone Jr., D-N.J., and Ranking Member Greg Walden, R-Ore., from House Energy and Commerce; and Chairman Lamar Alexander, R-Tenn., and Ranking Member Patty Murray, D-Wash., from the Senate Health Committee, said they supported the new efforts to protect patients and would work toward a consensus.
"We appreciate that the other two House committees share this priority," the lawmakers said in a statement Friday morning. "We look forward to working together to deliver a bill to the president's desk."
A handful of states, including California, New York and Texas, have enacted some sort of ban protecting patients from receiving a surprise bill, which usually happens when they receive care from an out-of-network doctor at an in-network facility. However, those efforts are limited because they can't affect employer-based plans, which are regulated at a federal level and cover the majority of U.S. citizens. Stopping the practice could save patients some $40 billion annually.
Along with major U.S. insurers, physician staffing companies are currently under bipartisan scrutiny for alleged predatory billing practices. The 13-year CEO of one such company, KKR-owned Envision Healthcare, stepped down from the role Thursday amid the House investigation into private equity's role in surprise billing. No official reason was given for his departure.