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February 19, 2020

Why Congress still might not be closer to passing 'surprise' billing legislation

Daily Briefing

    Two House committees last week advanced separate measures intended to address so-called "surprise" medical bills, but it's unclear whether either proposal will advance out of the House—let alone become law.

    The surprise billing legislative landscape: What can we learn from states' experiences?


    Federal lawmakers throughout 2019 had set their sights on approving legislation to address surprise medical bills, but their leading proposals to date have faced opposition from industry stakeholders. Ultimately, congressional leaders decided to delay legislative action on surprise medical bills until 2020 to give lawmakers more time to work on the issue.

    House committees advance bills

    The House Education and Labor Committee on Tuesday voted 32-13 to advance a bill, called the Ban Surprise Billing Act, that aims to address surprise medical bills by prohibiting out-of-network providers from balance billing patients in certain instances, including during emergency care. 

    The bill, which now goes to the full House, also would establish a benchmark payment rate for out-of-network care that is based on the median in-network payment rate in a given market and calls for establishing an arbitration process that insurers and providers could use to settle disputes over out-of-network payments totaling more than $750.

    The Congressional Budget Office (CBO) hasn't yet released a full score of the bill, but the office in an email sent to committee leaders estimated that the proposal would save the federal government nearly $24 billion over a decade, Modern Healthcare reports.

    On Wednesday, the House Ways and Means Committee voted unanimously to advance its own measure to address surprise bills to the full House. The House Ways and Means Committee's bill, called the Consumer Protections Against Surprise Medical Bills Act, also would prohibit providers from balance billing patients in certain cases and establish an arbitration process for insurers and providers to resolve billing disputes—but it would not set benchmark payment rates for out-of-network care.

    Under the bill, providers and insurers would have up to 30 days to negotiate a payment rate for out-of-network charges. If the parties cannot agree on a payment rate during that period, they then could choose to enter an arbitration process established by HHS and the Departments of Labor and the Treasury.

    CBO in an analysis released last week estimated that the bill would save the federal government nearly $18 billion over a decade, Inside Health Policy reports.

    Bills' futures unclear

    Federal lawmakers are hoping to pass legislation to address surprise medical bills by May 22 as part of a larger package of bills that would extend funding for certain public health programs. But despite that goal, it's unclear whether either of the House committees' proposals—or a third compromise proposal from the House Energy and Commerce Committee and the Senate Health, Education, Labor and Pensions Committee—will move forward.

    On Tuesday, White House spokesperson Judd Deere said the Trump administration is "concerned that a push to overuse arbitration will raise health care costs." The statement seemingly pits the White House against the House Ways and Means' Committee's bill, which would not set benchmark payment rates for out-of-network care, The Hill reports.

    According to The Hill, Republican and Democratic House aides from the Education and Labor and Ways and Means Committees—as well as aides from the House Energy and Commerce Committee—on Friday met with staff from House Speaker Nancy Pelosi's (D-Calif.) office and House Minority Leader Kevin McCarthy's (R-Calif.) office to discuss whether the panels could reach a compromise on their conflicting proposals to address surprise billing. However, sources familiar with the meeting told The Hill that the aides did not reach such a compromise.

    Further, even if House lawmakers do reach an agreement on and approve legislation to address surprise medical bills, it's unclear whether the proposal would gain traction in the Senate. According to Modern Healthcare, Senate Majority Leader Mitch McConnell (R-Ky.) has not committed to supporting any of the bills (Cohrs, Modern Healthcare, 2/15; Cohrs, Modern Healthcare, 2/12; Cohrs, Modern Healthcare, 2/11; Dooley Young, Medscape, 2/14; Sullivan, The Hill, 2/11; Sullivan, The Hill, 2/14; Cohen, Inside Health Policy, 2/11 [subscription required]).

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