National Law Review: Surprise Billing Comparison: What You Need to Know

The question is not if, but how: How will lawmakers tackle surprise billing? What started out as question for a small Senate working group in 2018 has turned into one of the major health priorities of both parties. Over the past year, discussion drafts were released, bills were introduced, and lawmakers sought feedback from stakeholders in an effort to produce bipartisan comprehensive legislation. In the last three days, two major bills have emerged (and more are on the way):

On May 14, 2019, Reps. Frank Pallone (D-NJ) and Greg Walden (R-OR), the Democratic and Republican leaders of the House Energy and Commerce Committee, released a discussion draft of the “No Surprises Act.”

On May 16, 2019, Sens. Bill Cassidy (R-LA), Michael Bennet (D-CO), Todd Young (R-IN), Maggie Hassan (D-NH), Lisa Murkowski (R-AK) and Tom Carper (D-DE), bipartisan group primarily working on transparency legislation, introduced their “Stopping the Outrageous Practice (STOP) of Surprise Bills Act of 2019.”

The two approaches have many similarities, but vary in key ways, as laid out in the chart below. Stakeholders should consider a few notable distinctions:

What constitutes surprise billing. The scenarios in which patients are protected are mostly aligned in the two proposals, except when a patient is seeking non-emergency care by an out-of-network provider at an in-network facility. The Senate bill prohibits surprise billing in this circumstance. The House bill, however, allows for an exception if the patient is provided with advance written and oral notice and, consents.

Process for Providers to Challenge the Payment Rate. The Senate bill includes an independent dispute resolution process, which allows providers to seek a different payment rate than the default median in-network rate where there is a ban on surprise billing. The House sets the minimum benchmark rate for insurers to pay providers and provides no mechanism for appeal.

Transparency Requirements. The Senate bill includes a number of transparency requirements for physicians, hospitals and health insurers. The House bill does not include similar requirements.

In the Senate, it will be important to see if Sens. Lamar Alexander (R-TN) and Patty Murray (D-WA), the leaders of the Health, Education, Labor and Pensions (HELP) Committee, adopt the provisions in the STOP Surprise Bills Act in a broader cost containment package they expect to release in the next few weeks. If they do so, that will position this bill as the leading Senate solution on the matter. If they do not include it, or if they advance an alternative, that will muddy the outlook.

In the House, Reps. Pallone and Walden are seeking feedback on the No Surprises Act discussion draft, and have yet to schedule a hearing on the issue. The Ways and Means Health Subcommittee, however, is scheduled to hold a “Hearing on Protecting Patients from Surprise Medical Bills” on May 21, 2019. More bills are expected to be introduced soon, further demonstrating broad bipartisan and bicameral interest in addressing this issue legislatively in 2019.

Source: The National Law Review