Not like the others: House Ways and Means surprise bill legislation

• Starting in 2022, patients who receive care from out-of-network providers either in emergency situations (both doctors and facilities) or when receiving care at an in-network facility will have their cost sharing limited to the in-network amount, according to a recent draft of the House Ways and Means Bill legislation.
• Patients will also be protected from balance billing if they receive inaccurate information from their health plan.
• HFMA’s Chad Mulvany says while there is bi-partisan agreement on addressing surprise bills that holds the patient harmless in emergency situations and instances where the patient received in-network facility care, there is bi-partisan disagreement on how to arrive at what to pay the provider in these instances.

The House Ways and Means committee recently released:

• A bi-partisan draft of its legislation to hold consumers harmless from surprise bills
• A section-by-section review of the Consumer Protections Against Surprise Medical Bills Act of 2020 draft
• A summary of the surprise bill draft

Starting in 2022, patients who receive care from out-of-network providers either in an emergency (both doctors and facilities) or when receiving care at an in-network facility will have their cost sharing limited to the in-network amount. Patients will also be protected from balance billing if they receive inaccurate information from their health plan.

In these situations if the provider and health plan cannot agree on a payment amount after a service is provided to a patient, the parties may enter a 30-day open negotiation process. Unlike other versions of surprise bill legislation, the draft does not set payment rates. It also includes several  provisions, detailed below, that are intended to increase the accuracy of plan network directories and improve the information available to patients about their out-of-pocket responsibilities in advance of service.

Provider payment amount in protected situations: Both parties are required to share specified information with each other at this stage to facilitate an agreement. The use or potential for use of this process does not absolve a health plan from any existing requirements to render payment to a provider when a service is provided. If no resolution is reached during the open negotiation, either party can initiate a mediated process to resolve the dispute that must end within 30 days. This process is administered by independent entities with no affiliation to providers or payers, either mutually agreed on or randomly assigned. During mediation, the parties will present best and final offers to the mediator. The dispute resolution entity will consider a median contracted rate specific to the type of plan or provider, type of service and geographic location. Independent entities are prohibited from considering usual and customary charges or billed charges. There is no minimum dollar threshold to bring cases.  

Price transparency – health plans: Health plans will be required to provide an “Advance Explanation of Benefits” for services scheduled at least three days in advance. This would include:

• Whether the provider is in-network, the negotiated rate (if applicable) or information on where member can find in-network providers
• Amount for which the plan is responsible 
• Member’s out-of-pocket amount
• Where the patient is relative to their deductible and out-of-pocket maximum
• A disclaimer that the item or service is subject to prior authorization or other “medical management technique” (if applicable) and appropriate disclaimers

Network directory updates: Health plans will be required to provide accurate and up-to-date information to consumers regarding provider participation in the health plan. Providers will be required to update information to a health plan in a timely manner. If inaccurate information is provided, consumers’ cost-sharing will be limited to in-network cost-sharing. Plans will be required to randomly sample at least 10% of their provider directory every 90 days and any provider, who has not submitted a claim within the previous 12 months, to verify the existing directory information. Additionally, plans will have two business days to correct their databases upon receipt of updated information from a provider.

Estimates for the uninsured: For those who are uninsured, electing to pay cash or are uncovered for an item or service by their health plan, providers will be required to provide a good-faith cost estimate in advance of a scheduled treatment. In instances where an eventual charge substantially exceeds the advance cost estimate, patients will have the ability to appeal to the independent mediator. 

Health plan price transparency tool: Requires health plans or plan sponsors to provide either a website or resource that allows members to compare out-of-pocket cost sharing amounts they would be responsible for based on the provider they use for the service in question.

Takeaway

There is bi-partisan agreement on the need to address surprise bills in a manner that holds the patient harmless in emergency situations and instances where the patient received care at an in-network facility. However, there is bi-partisan disagreement on how to arrive at what to pay the provider in these instances. The Senate HELP/House Energy and Commerce Committee draft, which initially pays a geographic median and then uses arbitration (available for bills over $750) if there is a dispute, has support from health plans but not providers. The Ways and Means draft is supported by providers but rejected, not just for the payment mechanism but also the requirements around network updating by health plans. Speaker Nancy Pelosi has been involved in conversations regarding reconciling the various House versions of surprise bill legislation, so it appears to be a priority for her. However, it’s unclear at this point whether a compromise can be found that will lead to language that gets incorporated into the anticipated legislation that will address many extenders and other health policy issues that will need to be passed by May 22. In an election year, many analysts view that bill as the best chance to move legislation to protect consumers from surprise bills.