Congress Still Remains in Limbo Over Surprise Billing Legislation

| Brittany McCullough
stethoscope and calculator on medical statement

The House of Representatives recently released two new proposals to address surprise billing, indicating there may still be disagreement on how to best fix the issue. I have to admit that while not surprising, it’s very frustrating that nearly nine months after I first covered Congressional proposals to fix surprise billing there is still not a clear path to the President’s desk. If you’re starting to lose count, there are now proposals out of the Senate Health, Education, Labor and Pensions (HELP), House Energy and Commerce, House Ways and Means, and the House Education and Labor Committees. So, everyone agrees there is a problem, but they have yet to come together to identify the best solution.

The new Ways and Means draft entitled “Consumer Protections Against Surprise Medical Bills Act of 2020” allows for a mediation process, the new name for arbitration, when health plans and out-of-network providers can’t agree on a reimbursement rate. Under this proposal, providers and facilities, as applicable, may enter into a 30-day negotiation period with a health plan upon determining there is disagreement on reimbursement rates for a particular claim. During this open negotiating process, both parties must start sharing information with each other by the fifth business day after initiating the negotiation period. Information shared during this time, such as the median contracted rate for the service in question, is supposed to help facilitate reaching an agreement. If an agreement still can’t be reached at the end of 30 days, within the following two days, the Secretary of the Department of Health and Human Services (HHS) must be notified to initiate a mediated dispute process.

As part of this, the bill directs the HHS Secretary in coordination with the respective Department of Labor and Treasury Secretaries (altogether, the Secretaries) to establish a mediated dispute process by July 1, 2021. Under this measure, the Secretaries shall allow for a process to certify independent entities to render payment determinations. This determination will be tailored to the type of service, type of provider and specific geographic location and does allow for grouping of similar claims.

In contrast, the Education and Labor proposal, H.R. 5800, relies on the use of benchmark rate and independent dispute resolution (IDR) process which other committees have also considered. For payment disputes equal to or less than $750 (or $25,000 for air ambulances), the median in-network rate for similar services in that geographic area will be used. For amounts above that, providers and plans have the option to use IDR. The proposal does allow for the grouping of claims so long as they are furnished by the same provider/facility, payment was made by a single group health plan, all services are related to the treatment of the same condition and all services were furnished within 30-days after the first item or service in the IDR request was furnished.

For an entity to be eligible to render an IDR determination, they must be certified by the Secretaries under forthcoming regulations that will outline specific criteria the entity must meet. H.R. 5800 directs the Secretaries to publish regulations within a year of enactment. In addition, it requires the Secretaries to publicly report on the overall number of IDR requests in a given year, the number of requests with which a final determination was made, the practice size of providers submitting IDR requests, and a general description of the service in question.

Both committees expect to markup and pass their versions of surprise billing legislation in the coming weeks. Additionally, under the parameters of both proposals, URAC-accredited independent review organizations (IROs) are well positioned to serve as the independent dispute resolution entities. I will note that even if either of these proposals eventually clears the House, for something to make it to the President’s desk, the Senate has to get behind it. You may recall that lawmakers declined to fund certain HHS-governed extenders like community health centers past May 2020 in hopes of reaching an agreement on surprise billing and drug pricing legislation by then.

Stay tuned to see if that actually happens.

Brittany McCullough photo

Brittany McCullough, Health Policy Specialist.

Brittany McCullough, URAC's health policy specialist, focuses on tracking and analyzing legislation and regulations of importance to URAC stakeholders. She also helps manage URAC’s public policy external engagement. Most of her policy and research work has been related to the ACA, Medicaid managed care, Part D, telehealth and mental health parity. She holds a B.S. in Neuroscience and a Master of Health Administration.

Views, thoughts and opinions expressed in my articles belong solely to me, and not necessarily to my employer.

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