Keenan Blog

Congress Papers the Walls With Health Care Bills; Few Expected to Stick

September 17, 2019

The United States Congress has returned to Washington, DC from their August recess for a final push on legislation before the upcoming Presidential Election year. Legislators will have a host of health care measures to consider. The real question is just how few of the many bills proposing health care reform and consumer protection will receive any serious attention. Some of these bills offer dueling objectives of either bolstering or undermining the Affordable Care Act (ACA), while others promote alternative plans and markets. Still others seek to either strike down or enshrine into law the regulations or executive orders issued by competing presidential administrations. The challenge will be separating the real opportunities for substantive action from all the noise.

A few pieces of federal health care legislation have made progress already and could become the foundations of bills that will reach the floors of the respective houses. Senators Lamar Alexander (R-TN) and Patty Murray (D-WA) have a bipartisan proposal, the Lower Health Care Costs Act (S. 1895), that focuses on protecting patients from surprise medical expenses because of balance billing by out of network providers. S. 1895 would require health plans to pay an out of network provider the median in-network rate for the geographic area, as well as imposing significant penalties on providers who balance bill more than the in-network cost sharing amount a patient may be responsible for paying. Alexander-Murray bears watching as it is likely to be the one amended to incorporate features of other proposals.

Additional bills have been introduced to provide balance billing protections using different methods for benchmarking or negotiating out of network reimbursement. Employers and insurers mainly advocate the benchmarking approach in which out of network providers would have their reimbursement based on the amount in-network providers are paid for similar services. Provider groups including emergency department physicians and anesthesiologists support using independent dispute resolution, a form of arbitration to determine fair compensation. Under one proposed bill, the arbitration backstop would only be triggered if the expenses exceeded $1,250. The party losing the arbitration would also bear the cost of the arbitration process. Those who oppose independent dispute resolution argue that the method only leads to increasing medical and administrative costs over time.

Two bills that seems to have momentum are S. 1510 and H.R. 2782 which propose to amend the ACA definition of “full time employee” by increasing the minimum hours from 30 to 40 hours per week. Known collectively as the Employee Flexibility Act, these two bills could considerably simplify employer payroll and benefit eligibility but would also leave some employees vulnerable to losing employer sponsored health coverage. There appears to be a good chance this provision will make it into a package of legislation for final consideration toward the end of the year.

Another bipartisan effort is to simplify employer reporting under the ACA’s Employer Mandate and to make the data available prospectively, rather than long after the fact. S. 2366 and H.R. 4070 are parallel bills, each sponsored by a Republican and Democrat in their respective house. These measures work to provide consumers with additional protection for information privacy and more accurately determining premium subsidies. They would also reduce employer reporting burdens through a voluntary system only for those employees for whom the employer has received notification that the employee or their dependents purchased exchange coverage rather than issuing reporting statements for the entire workforce. Finally, the federal government and state exchanges would have better access to data for eligibility verification and program oversight.


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.