Digital Debut

Congress Continues Work on Surprise Billing

ASCA keeps advocating for its members at the state and federal levels

BY STEVE SELDE | JUNE 2019

In response to patient complaints about “surprise” bills after receiving services in an in-network facility, congressional activity has picked up on the issue over the last year. As congressional consideration continues, ASCA stands with the provider community in advocating for arbitration to be used to resolve payment disputes and for pro-competition elements to be included, so that patients and providers have greater access to the savings and high-quality care ASCs provide.

At this point, two legislative proposals have become prominent after almost half-dozen hearings directly on the issue. The two proposals, one moving through the House of Representatives and the other moving through the Senate, have three common elements. First, each would require a health plan to treat the out-of-network service as if it were in-network for purposes of enrollee cost-sharing, deductibles and out-of-pocket limits. Second, the proposals would prohibit out-of-network providers and facilities from balancing billing patients. Third, each would resolve reimbursement disputes between payers and providers by requiring the insurer to pay the median in-network negotiated rate for the service in the geographic area where the service was delivered. The secretary of the Department of Health and Human Services would be directed to determine through rulemaking the specifics of the median in-network rates.

While the proposal in the House is so far limited to ending only surprise billing, the Senate proposal includes additional provisions ranging from efforts aimed at lowering the price of prescription drugs to increasing competition among providers and price transparency. ASCA wrote in support of the provisions that focus on increasing competition and driving value for patients and families. These include banning gag clauses between providers and health plans that prevent enrollees, plan sponsors or referring providers from seeing cost and quality data. Similarly, ASCA supports prohibiting other contractual terms that unjustifiably penalize patients, like all-or-nothing clauses which health systems might use to require a health plan to contract with all the facilities in their system or none at all.

The Senate proposal uses a median-in-network rate to resolve payment disputes but the pro-competition provisions of the bill are unlikely to realize their potential compared to a framework that uses arbitration to resolve such disputes. ASCs contribute to the physical and economic health of communities across the country, and it is critical that ASCs and other providers have the opportunity to negotiate with payers on an even playing field. Silencing providers’ voices, and instead leaving consideration of health care costs under the sole control of insurers runs the risk of lowering reimbursement, negatively impacting the viability of ASCs and other small providers resulting in limited access to care. Conversely, arbitration maintains provider input, allows for timely resolution of disputes, and removes the patient from the process.

While policymakers on the federal level are exploring options to eliminate surprise billing nationwide, on the state level, almost half of the states in the nation have some form of protection against surprise medical bills for patients in state regulated insurance plans. However, a state’s ability to regulate surprise medical bills is limited by the Employee Retirement Income Security Act of 1974 (ERISA), which precludes states from regulating self-funded employer plans. These self-funded plans cover more than 100 million Americans.

The federal proposals mentioned above have not been passed by their respective chamber yet and the dialogue continues in Congress. ASCA will continue to support its members’ efforts to ensure that patients and other providers in their local community can access the information they need. This includes information on the price of a procedure and the quality and safety of a facility, so that potential patients can make informed decisions about whether an ASC is the highest value setting for their procedure.

For more information, please write Steve Selde.