Lawmakers Reach Surprise Medical Bills Agreement

Update: Monday, December 14, 2020

On Friday evening, a “compromise” surprise medical bill legislative proposal was released by committees in the U.S. House of Representatives.   While this compromise has been in the works for a number of months, Friday marks the first opportunity for ASA and other stakeholders to actually view the 365 page proposal.
 
ASA leadership and advocacy staff have been working for months in support of a solution to surprise medical bills that preserves the ability of physician anesthesiologists to negotiate fair payments and that does not represent a “give-away“ to the health insurance industry.  Already there have been hundreds of conversations with Members of Congress and Congressional staff along with the efforts of an ASA co-led coalition of medical organizations.
 
ASA is continuing to review the complex legislation.  The bill includes some concessions that were made to address concerns raised by ASA and others physician organizations.  However, there are other elements of the legislation that have the potential to adversely impact anesthesiologists’ practices. ASA will continue to seek clarity on those provisions. Accordingly, ASA has not yet taken a position on the legislation.
 
Below is an initial understanding of the proposed bill; it remains possible that the legislation will be rushed through in the closing days of this legislative session of Congress.  ASA welcomes members’ comments. Please send them to [email protected].
 
Key provisions of the legislative proposal include:

• Effective date of January 1, 2022.
• Covers all federally regulated Employee Retirement Income Security Act (ERISA) plans (these are self-funded plans usually union and large employers that are not subject to state law or regulation) and those states that do not have a surprise medical bill solution in law. Does not supersede existing state laws.
• Prohibits plans and providers (facilities and individual practitioners) from surprise billing patients for emergency out-of-network care, certain out-of-network care in in-network facilities, and for non-emergency out-of-network care provided at in-network facilities without the patient’s consent. Patients are only responsible for in-network cost-sharing.
• No initial or interim payment set by the government i.e. no median in-network rate.
• If a provider notifies a patient of the estimated cost of the out-of-network care at least 72-hours prior to the patient receiving the care, and the patient consents to the care, those services are not subject to the ban on surprise billing.
• Providers and plans can attempt to negotiate for 30-days before accessing independent dispute resolution/arbitration process.
• Arbitration process is baseball-style (each party submits an offer and the arbitrator has to choose one of the two offers).
• No minimum billing amount threshold to enter into arbitration.
• Similar claims can be batched together to go through the arbitration process.
• The arbitrator can consider all information submitted by the provider and payors, including the previous contracting history, median in-network rate, complexity of the case, and market power of the provider and payor, among other things.  Consideration of charges is prohibited.
• The decision is final and payment must be made within 90 days.
• A 90-day cooling off period prohibits providers and payors from initiating a new arbitration process for 90-days for the same item/s or service/s with the same insurer.
• Payors are still required to provide regular payments to providers within this window.

Other provisions: 

• Language advancing the ASA-opposed provider non-discrimination provisions from the ACA. 
• Transparency related provisions include requiring group or individual health plan to identify on insurance cards the amount of the in-network and out-of-network deductibles and the in network and out-of-network out-of-pocket maximum limitations. 
• Health plans are required to have up-to-date directories of their in-network providers. 
• Health plans must provide an Advance Explanation of Benefits for scheduled services at least three days in advance.
• Facilities and practitioners are required to give patients a list of services received no later than 15 calendar days after discharge or date of visit. 
• If a patient receives a bill more than 90 calendar days after receiving care, the patient is not obligated to pay.

ASA will continue to work on this legislation and keep you apprised of any developments.
 

Today, Congressional lawmakers announced they have reached a compromise deal on legislation to address surprise medical bills.  This agreement was announced between Committee leadership in the House Energy and Commerce Committee, House Ways and Means Committee, House Education and Labor Committee, and Senate Health Education Labor and Pensions Committee.  

According to the Committee leaders, the bill holds patients harmless from surprise medical bills, including from air ambulance providers, takes patients out of the middle, and allows health care providers and insurers to resolve payment disputes without involving the patient.  It also includes an independent dispute resolution process (IDR) with no minimum payment threshold and claims may be batched together, in addition to other consumer protections.

The package includes also includes a long-term extension of expiring public health programs, including Community Health Centers.

The American Society of Anesthesiologists is reviewing this legislative proposal, and will provide a full analysis in the coming days.  ASA also invites members to provide their perspectives and comments to [email protected].
 
Legislative text is available HERE.  
 
Section-by-section is available HERE.

Frequently asked questions is available HERE.