The House Committee on Ways and Means released on February 7, 2020, its bipartisan proposal to, among other things, protect consumers from surprise medical bills and enhance consumers’ access to healthcare cost information by requiring greater transparency. The House Committee on Education and Labor also released a proposal (on February 10), which is now the third piece of surprise billing legislation competing for attention in the House of Representatives.

The House Committees on Ways and Means and Education and Labor are expected to hold markups of their legislation this week. Last year, the House Energy and Commerce Committee advanced its surprise billing legislation as part of a broader healthcare funding package.

At this point, the path forward for the competing proposals remains uncertain given the clear divide between stakeholders, particularly as it relates to the dispute resolution mechanism between providers and plans for balance bill situations. If a compromise is reached, Congress may be eyeing an opportunity in late May to move on surprise billing. Otherwise, we expect action on this issue to be pushed into the lame duck session or next year.

Surprise Billing

The House Ways and Means Committee released its discussion draft of its Consumer Protections Against Surprise Medical Bills Act of 2020. Beginning in 2022, the discussion draft caps cost-sharing obligations for patients who receive care from out-of-network providers at in-network rates in the following scenarios:

  • Emergency services provided by an out-of-network provider or at an out-of-network emergency facility;
  • Non-emergency services provided by out-of-network provider or at an out-of-network facility; and
  • If the patient received incorrect information from their plan about the network status of their provider.

Notably absent from the regime are air ambulances.

The discussion draft establishes a two-step dispute resolution framework between providers and plans when there is a balance bill scenario. As a first step, either party may initiate a 30-day “open” negotiation during which the plan and provider will exchange information (e.g., the median in-network rate, the median reimbursement amount, etc.). If the negotiations fail, then either party may initiate the mediated dispute process to resolve the dispute within 30 days. The discussion draft leaves some of the details of the mediation process to the Department of Health and Human Services (“HHS”) (e.g., batching of similar claims, creating a process to transition from the open negotiation to mediation, establishing a process to certify the third-party mediators, etc.) but broadly requires:

  • Selection of and administration by an unbiased third party (i.e., a “selected independent entity”);
  • Each party—within 10 days of initiating the mediation—to put forth their “best and final” offer and supporting information to substantiate it; and
  • The “selected independent entity” to select/approve one of the offers following consideration of the median contracted rate and the supporting information provided by the parties.

Unlike other dispute resolution proposals, there is no minimum dollar amount to bring cases, though each party must pay an administrative fee—to be set by HHS—to participate in the mediated dispute process.

Plan Transparency & Consumer Protections

The House Ways and Means discussion draft further incorporates a variety of transparency and consumer protection measures for plans, including requirements that they:

  • Update and verify directory information for all in-network providers;
  • Make publicly available—and include on each explanation of benefits (“EOB”)—information on statutory balance billing prohibitions;
  • Provide an “Advanced EOB” regarding scheduled services (i.e., a notification containing the provider’s network status, applicable/anticipated rates, a “good faith” cost estimate, etc.) upon request;
  • Work to ensure continuity of care when contractual relationships between plans and providers change or are terminated;
  • Distribute identification cards that disclose network and cost sharing information; and
  • Maintain a price comparison tool for consumers (i.e., an online portal that allows an individual consumer to view the anticipated cost-sharing amount associated with a specific item or service in a given geographic area based on historic claims data of participating providers).

The discussion draft also establishes an air ambulance data reporting program, under which providers of emergency air medical services are required to submit certain claims data related to their provision of services to HHS.