American Society of Plastic Surgeons
For Consumers

More Key House Committees Pass Problematic Surprise Billing "Fixes"

Recently, the House Ways & Means Committee and the House Education and Labor Committee passed separate proposals to address surprise billing, joining several other committees across Congress in producing surprise billing legislation in the current congress. Ways and Means and Education and Labor also joined those other committees by producing proposals that will upend the current – already imbalanced – negotiating relationship between insurance companies and physicians.

The Ways & Means proposal, known as the Consumer Protections Against Surprise Medical Bills Act, includes a mediated dispute process on the heels of an open negotiation period in the event a physician is not satisfied with the reimbursement they receive for an accidental out-of-network encounter. However, the bill severely limits what can be considered by a mediator in resolving billing disputes. The legislation includes a benchmark of what the mediator can consider by expressly prohibiting consideration of billed charges and requiring consideration of the median in-network rate.

The Education and Labor Committee's Ban Surprise Billing Act is even more problematic than the Ways and Means bill. This legislation also includes a benchmark, but instead of benchmarking in the mediation process, it benchmarks the initial payment for services to the median in network rate, essentially setting a fixed price for services. It also sets a threshold for when a claim may go to arbitration by requiring charges be in excess of $750 before a dispute may be filed.

Studies show that over time inappropriately low payment benchmarks that tie out-of-network payments to in-network rates decrease physician reimbursement and do nothing to improve network adequacy, and ASPS has taken a firm position against that structure. ASPS acted quickly and comprehensively to try to shape these bills, engaging in a grassroots campaign to urge over 1800 plastic surgeons in the districts of the members serving on the Ways & Means and Education & Labor Committees to contact their legislators. ASPS also formally requested the committees to make amendments to their bills and to ensure they adequately reimburse physicians and issued a press release expressing disappointment in the committees' work.

Congress' next good opportunity to reconcile the differences between these approaches to surprise billing comes on May 22, 2020, when several important healthcare measures must be reauthorized. Balance billing legislation is expected to be considered at that time because Congress hopes to use the cost savings from the balance billing legislation to offset expenditures in other measures.