Congress finally moves to stop surprise medical billing as part of spending deal

Congress has finally addressed one of Americans’ biggest health care headaches: surprise medical billing.

Lawmakers included a bipartisan, bicameral agreement to stop the practice in this week’s government spending bill. The deal among key players in both the House and Senate was released earlier this month — a year after the last joint-chamber agreement was announced before withering amid competing measures in the House.

At issue are the bills that patients get after receiving care from out-of-network physicians or hospitals, often in emergency situations. Roughly 1 in every 6 emergency room or in-hospital stays generated at least one out-of-network medical bill in 2017, according to a Kaiser Family Foundation analysis.

Nearly 2 in 5 insured, non-elderly adults received an unexpected medical bill, a 2018 Kaiser study found. Among that group, 31% owed $500 or more.

Some 80% of Americans favor protecting patients from surprise medical charges from out-of-network providers in emergency situations or hospitalizations, a recent Kaiser study found.

Stopping unexpected billing nightmares is among the few issues to enjoy broad cross-party support on Capitol Hill and in the White House. President Donald Trump, who called on lawmakers to end the practice in May 2019 and in his State of the Union address in February, issued an executive order in September directing Congress to act before the end of the year.

“There will never be a broader bipartisan, bicameral solution to ending surprise medical billing and we should deal with it now,” Tennessee Republican Sen. Lamar Alexander said in a statement Sunday. “Patients cannot wait any longer.”

However, just how to spare Americans from unexpected bills became bogged down in the months prior to the coronavirus pandemic amid a lobbying and advertising blitz by insurers on one side and hospitals and doctors on the other.

All the efforts have protected patients, who would pay the same amount they would have if the providers were in-network. But who covers the rest of the tab is in dispute.

The latest deal

The 372-page agreement was jointly released December 11 by chairs and ranking members of the Senate Health, Education, Labor and Pensions, the House Energy and Commerce, the House Ways and Means and the House Education and Labor committees. It is expected to be added to the government spending bill this week.

Patients would only be responsible for their in-network cost-sharing for both emergencies and certain non-emergencies where patients don’t have the ability to choose an in-network provider.

Out-of-network providers would be prohibited from billing a patient for the balance unless they provided notice of their network status and an estimate of charges 72 hours in advance, and the patient consents to receiving out-of-network care.

Insurers and providers would resolve the remaining bill through negotiation or an independent dispute resolution process. The arbiter would be required to consider the median in-network rate, previous contracts, the complexity of services, training of the provider, market share of the parties and other factors. And there would be a 90-day window before the parties can return to arbitration for the same service.

Unlike prior deals, there would be no minimum payment threshold to enter arbitration. And it covers air ambulances, whose services can be very costly, but not ground ambulances.

Despite lawmakers’ attempts to mollify all parties, the deal still sparked criticism from insurers and providers.

America’s Health Insurance Plans continues to advocate for a solution based on locally negotiated rates, not arbitration. It argues that private-equity firms, which have been buying up specialty doctor practices that send many surprise bills, “will continue to find ways to exploit the arbitration process to price gouge patients and raise health care costs for everyone.”

Meanwhile, the American Hospital Association also took issue with several provisions, voicing concerns about allowing arbiters to consider Medicare and Medicaid payment rates during dispute resolutions and holding hospitals responsible for physician billing and payments, among others. Under the final deal, arbitrators are not allowed to include Medicare and Medicaid rates in their considerations.

And the American Medical Association sent a letter last Tuesday to Congressional leaders opposing the agreement, saying it would “significantly disadvantage already stressed physician practices,” particularly smaller offices that may not have the resources to participate in arbitration.

This story has been updated with bill passage and additional details of the legislation.