Keenan Blog

Congress Continues its Attempt to Address Surprise Medical Billing

February 21, 2020

While politicians on the campaign trail may be focused on questions of support for Medicare-for-All or other sweeping proposals, on Capitol Hill this week legislators worked on addressing one of the everyday problems that insured Americans encounter in the healthcare system: surprise medical billing.

Surprise medical billing describes any situation where a person thinks they are getting care with an in-network doctor or facility—they are taken to the hospital on an emergency basis—but later find out that one or more of the providers that treated them there are not in their network.Employees can be hit with thousands of dollars in bills from anesthesiologists, imaging providers, ambulance companies, and other medical providers with whom their insurer has no contract.

Several bills have been introduced in Congress to offer relief to the patients caught in this all-too-familiar scenario.All of the bills would hold the patient harmless. They provide that if a person receives out-of-network care when brought to an in-network facility for emergency or post-emergency care, that person is not responsible for paying more than their usual in-network rate for the service. Out-of-network providers would be prohibited from balance-billing patients. Where the bills differ is in their approach to how to resolve disputes between insurers (or self-insured plans) and out-of-network providers.

Last week, the House of Representatives worked on two bills that would address surprise medical billing. On Tuesday, the House Committee on Education and Labor marked up H.R. 5800, the Ban Surprise Billing Act. As introduced, that bill would resolve provider-insurer disputes in one of two ways, based on the amount charged:

  • For amounts less than or equal to $750 (or $25,000 for air ambulance services), the bill would rely on a market-based benchmark of the median in-network rate of providing similar items or services in the same geographic area.
  • For amounts above $750 (or $25,000 for air ambulance services), providers and insurers would be able to elect to use independent dispute resolution to determine a fair payment amount.

The bill also includes provisions aimed at providing better information to patients, including requiring health plans to maintain up-to-date and accurate provider directories, improving consumer access to information regarding expected cost-sharing and improving transparency regarding in-network and out-of-network deductibles and out-of-pocket limitations.

That same day, the House Ways and Means Committee marked up H.R. 5826, the Consumer Protections Against Surprise Medical Bills Act of 2020, which would rely on open negotiation to resolve billing disputes between non-contracted providers and insurers. If negotiations fail to resolve a dispute within 30 days, the parties would go to mediation. H.R. 5826 also provides for insurer updates to network provider directory information every 90 days, as well as other protocols intended to provide patients with prompt, accurate information when they inquire about in-network providers.

With both bills reported out of committee and bipartisan support for addressing surprise medical billing, this could be one of the few reforms that stand a chance in the hyper-partisan atmosphere in Washington this year.Congress must pass funding before May 22, 2020 for three public health programs: community health centers, the National Health Service Corps, and teaching health centers.There is a potential that, if reached, a deal on surprise medical billing could be included in an appropriations package for those programs. If not, a solution on surprise medical billing will likely wait until after the November election.

About Amy Donovan
Amy is Keenan's Vice President of Legislative and Regulatory Affairs, authoring the firm's Briefings and position papers on legislation, regulation and litigation that have an impact on the firm and its clients.