Bipartisan revolt against surprise medical bills
The detente that allowed Congress to pass a law curbing surprise medical bills has disintegrated, with a bipartisan group of 152 lawmakers assailing the administration’s plan to regulate the law and medical providers warning of grim consequences for underserved patients.
For years, people have faced these massive, unexpected bills when they get treatment from hospitals or doctors outside their insurance company’s network. It often happens when patients seek care at an in-network hospital but a physician such as an emergency room doctor or anesthesiologist who treats the patient isn’t covered by the insurance plan. The insurer would pay only a small part of the bill, and the unsuspecting patient would be responsible for the balance.
Congress passed the No Surprises Act last December to shield patients from that experience after long, hardfought negotiations with providers and insurers finally yielded an agreement lawmakers from both parties thought was fair: a 30-day negotiation period that would be followed by arbitration when agreements can’t be reached.
The rule, which would take effect in January, effectively leaves patients out of the fight. Providers and insurers have to work it out among themselves, following the new policy.
But now many doctors, their medical associations and members of Congress are crying foul, arguing the rule released by the Biden administration in September for implementing the law favors insurers and doesn’t follow the spirit of the legislation.
“The Administration’s recently proposed regulation to begin implementing the law does not uphold Congressional intent and could incentivize insurance companies to set artificially low payment rates, which would narrow provider networks and potentially force small practices to close thus limiting patients access to care,” Rep. Larry Bucshon (R-ind.), who’s a doctor and helped spearhead a letter of complaint this month, said in a statement to KHN.
Nearly half of the 152 lawmakers who signed that letter were Democrats, and many of the physicians serving in the House signed it. But the backlash hasn’t won the support of some powerful Democrats, including Rep. Frank Pallone (N.J.), chair of the Energy and Commerce Committee, and Sen. Patty Murray (Wash.), chair of the Senate Health, Energy, Labor and Pensions Committee, who wrote to the administration urging officials to move forward with their plan.
Some members of Congress who are also doctors held a conference call with the administration late last month to complain, according to aides to lawmakers on Capitol Hill, who couldn’t speak on the record because they didn’t have authorization to do so. “The doctors in Congress are furious about this,” said one staff member familiar with the call. “They very clearly wrote the law the way that they did after a year, or two years, of debate over which way to go.”
The controversy pertains to a section of the proposed final regulations focusing on arbitration.
The lawmakers’ letter — organized by Reps. Thomas Suozzi (D-N.Y.), Brad Wenstrup (R-ohio), Raul Ruiz (D-calif.) and Bucshon — noted the law specifically forbids arbitrators to favor a specific benchmark to determine what providers should be paid. Expressly excluded are the rates paid to Medicare and Medicaid, which tend to be lower than insurance company rates, and the average rates of doctors bill, which tend to be much higher.
Arbitrators would be instructed to consider the median in-network rates for services as one of several factors in determining a fair payment. They would also have to consider items such as a physician’s training and quality of outcomes, local market share of the parties involved where one side may have outsize leverage, the patient’s understanding and complexity of the services, and past history, among other things.
But the proposed rule doesn’t instruct arbiters to weigh those factors equally. It requires them to start with what’s known as the qualifying payment amount, defined as the median rate the insurer pays in-network providers for similar services in the area.
If a physician thinks they deserve a better rate, they’re then allowed to point to the other factors allowed under the law — which the medical practitioners in Congress believe is contrary to the bill they wrote.
The provisions in the new rule “do not reflect the way the law was written, do not reflect a policy that could have passed Congress, and do not create a balanced process to settle payment disputes,” the lawmakers told administration officials in the letter.
The consequences, opponents of the rule argue, would be a process that favors insurers over doctors, and pushes prices too low. They also argue it would harm networks, particularly in rural and underserved areas, because it gives insurers incentive to push down the rates they pay to in-network providers. If the innetwork rates are lower, then the default rate in arbitration is also lower.
That’s the argument made specifically in a lawsuit filed last month against the Biden administration by the Texas Medical Association.
The suit alleges in a handful of states that already have a similar strategy, such as California, a recent study shows payment rates are driven down. Citing that data and a survey by the California Medical Association, the suit says insurers now have an incentive to end contracts with better-paid in-network providers or force them to accept lower rates, since out-of-network providers then become subject to the same lower baseline.
Jack Hoadley, of Georgetown University’s Health Policy Institute, said the results could run either way, depending on whether insurers or providers are more powerful in a specific market.
“You’ve got some markets where you have a dominant insurer, and they can say to providers: ‘Take it or leave it. Because we represent most of the insurance business, we represent most patients,’” Hoadley said.
But in other places, there might be a provider group that’s stronger. “All the anesthesiologists might be in one large practice in a market, and they can basically say to the insurers in that market, ‘Take it or leave it,’” he said.
In releasing the rule, the Centers for Medicare & Medicaid Services pointed to an analysis from the Congressional Budget Office the No Surprises Act would lower premiums by about 1 percent and shave $17 billion off the federal deficit.