Lawmakers Should Consider These Pro-Taxpayer Amendments to the Ways and Means Surprise Billing Proposal

The House Committee on Ways and Means has scheduled a February 12 markup of their surprise billing legislation, the Consumer Protections Against Surprise Medical Bills Act (H.R. 5826). National Taxpayers Union (NTU) wrote about the bill at length last week, noting that H.R. 5826 is a thoughtful proposal but that many concerns with the legislation remain.

To that end, there are several ways lawmakers could improve the bill at its February 12 markup. The following are some brief amendment ideas that House members should consider at the Committee level, or if and when H.R. 5826 reaches the House floor.

  • Modify Section 3 so that it more closely resembles the in-network guarantee considered by the Senate Health, Education, Labor, and Pensions (HELP) Committee in May 2019. Section 3 of H.R. 5826 (pages 81-88 of the AINS text) prohibits health insurance plans from charging patients beyond their in-network cost-sharing liability when they are seen by an out-of-network provider at an in-network facility, and accomplishes this by amending the Public Health Service Act (PHSA), the Internal Revenue Code (IRC), and the Employee Retirement Income Security Act (ERISA). The section could be reworked in a simpler way that still protects patients by prohibiting health insurance plans from contracting with hospitals and facilities whose doctors and lab services are not under contract with either the plan or the provider (the “in-network guarantee”). This provision would work in tandem with the prohibition on balance billing (Sec. 8), and would still allow doctors currently outside of an insurance network the option of either 1) contracting with the same insurers as the hospitals they work at or 2) arranging to receive payment from the hospital only. Pages 11-14 of the HELP discussion draft provide a strong template for this legislative language.

  • Remove two provisions related to arbitration guidance: 1) the requirement that arbitrators consider the median contracted rate when determining payment amounts and 2) the prohibition on arbitrators considering billed charges or usual and customary charges. This could be accomplished by striking subparagraph (C) in Sec. 2719A(j)(5), as proposed to be added to the PHSA (pages 151-152 of the AINS text). NTU believes that, when it comes to certain payment rates, requirements or restrictions on arbitrators will only serve to hamstring them and tip the scales in favor of either payer or provider. This is central to why health insurance plans have been fighting for a benchmark (the “median contracted rate”) and doctors have been fighting for arbitration (because many arbitration proposals rely on billed or usual and customary charges). A better solution would be agnostic as to whether arbitrators consider conditions that typically favor insurers or conditions that typically favor doctors.

  • Absent a removal of the two arbitration provisions above, add several payment factors to the arbitrator’s guidance, including but not limited to billed charges, usual and customary charges, and allowed amounts. While NTU’s strong preference is to remove the two provisions providing arbitrators explicit guidance in choosing a payment rate, absent such removal, the Committee should consider a next-best option: adding rates preferred by doctors to the rates preferred by insurers. Some rates preferred by doctors include usual and customary charges (UCR) and billed charges. The maximum allowed amount insurers develop for both in-network and out-of-network providers could also be considered. This amendment would also necessitate the removal of clause (ii) of subparagraph (C) in Sec. 2719A(j)(5), as proposed to be added to the PHSA (pages 151-152 of the AINS text). The point of this amendment is not to favor either doctors or insurers, but to level the playing field as much as possible and ensure arbitrators are making a decision with the maximum amount of information available to them.

Chairman Richard Neal (D-MA) and Ranking Member Kevin Brady (R-TX) have put much effort into their surprise billing proposal. While NTU remains opposed to using arbitration to resolve surprise billing disputes, the above amendments would improve the legislation should it advance through the Committee and receive a vote on the House floor.