As the statistics demonstrate, surprise medical billing is a big issue in the U.S.:

• About 1 in 6 Americans are faced with a surprise medical bill each year.
• 16% of inpatient stays and 18% of emergency visits leave patients with out-of-network charges.
• 26% of admissions from the emergency room result in a surprise medical bill.[1]

We’ve heard from both Republicans and Democrats that they are focused on finding a solution to the problem of surprise medical bills. But, where does their effort stand?

So far this year, three bills have been introduced in the House and three in the Senate, each aimed at addressing surprise medical billing:

1. End Surprise Billing Act of 2019 (H.R. 861, introduced January 20, 2019 by Rep. Doggett [D-TX])
2. Protecting People from Surprise Medical Bills Act (H.R. 3502, introduced June 26, 2019 by Rep. Ruiz [D-CA])
3. No Surprises Act (H.R. 3630, introduced July 9, 2019 by Rep. Pallone [D-NJ])
4. Protecting Patients from Surprise Medical Bills Act (S. 1266, introduced on May 1, 2019 by Sen. Scott [R-FL])
5. Stopping the Outrageous Practice of Surprise Medical Bills Act (S. 1531, introduced on May 16, 2019 by Sen. Cassidy [R-LA])
6. Lower Health Care Costs Act of 2019 (S. 1895, introduced on June 19, 2019 by Sen. Alexander [R-TN] and Sen. Murray [D-WA])

Two bills are currently moving forward – the No Surprises Act and the Lower Health Care Costs Act of 2019.

Both Acts are similar:

• Preventing the balance billing of a patient for emergency services;
• Preventing the balance billing of a patient for out-of-network services (absent certain notice to the patient);
• Providing for penalties in an amount not to exceed $10,000 per violation (and include a safe harbor provision); and
• Preserving the state’s ability to determine its own solution to resolve out-of-network payment between insurers and providers for plans regulated by the state.

The original version of the No Surprises Act used “benchmarking” to set the payment for out-of-network providers. Benchmarking is also the method ultimately included in the Lower Health Care Costs Act of 2019.[2]Benchmarking forces a provider to accept the average of what other providers in the area receive for the medical services. The No Surprises Act did not include a right to seek independent dispute resolution (arbitration) if the provider or plan did not agree with the benchmark amount.

On July 17, 2019, the House Energy and Commerce Committee approved a new version of the No Surprises Act.[3] The new version includes an amendment providing a “backstop” to the benchmark. The “backstop” allows a provider to appeal the amount to an arbitrator if it believes the benchmark amount is not high enough (so long as the amount at stake is more than $1,250).

This amendment to the No Surprises Act puts it at odds with the Lower Health Care Costs Act of 2019.[4]

The biggest hold up in passing surprise billing legislation continues to be how to handle determining the amount a provider is entitled to when it provides emergency or out-of-network services. We will not likely see any movement forward on this legislation until that issue is resolved. However, at the current time, the two bills that are inching closer to a resolution of surprise medical billing are the No Surprises Act and the Lower Health Care Costs Act of 2019. It is yet to be seen if either of them will make it.

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[1]Karen Pollitz, Matthew Rae, Gary Claxton, Cynthia Cox and Larry Levitt, An Examination of Surprise Medical Bills and Proposals to Protect Consumers From Them, Kaiser Family Foundation (June 20, 2019).

[2]Three different methods were evaluated before moving forward with benchmarking in the version of the bill introduced in the Senate – benchmarking, in-network guarantee (forcing acceptance of in-network rates for out-of-network services), and baseball-style arbitration (arbitrator picks between the health plan and the provider’s assertion of the cost of the out-of-network services).

[3]https://khn.org/news/surprise-medical-bill-legislation-takes-a-step-forward-but-will-it-lead-to-a-step-back/

[4]Due to the Lower Health Care Costs Act of 2019 being a more sweeping health care legislation, it faces issues not related to surprise medical billing. At this point, according to Kaiser Health News, senators have placed 10 “holds” on the legislation, preventing it from going to a vote.  Seehttps://khn.org/news/surprise-medical-bill-legislation-takes-a-step-forward-but-will-it-lead-to-a-step-back/.