Congress is still expected to pass a surprise-bill measure this year

• Compromise surprise-bill legislation is expected to pass before Congress departs in a month.
• The compromise could allow some arbitration of rates, with in-network rates as a starting point.
• A bill to cut drug prices is less likely to pass Congress in 2020.

A leading Senate proponent and a spectrum of healthcare policy advisers agreed that Congress is likely to pass legislation this year to bar surprise healthcare bills.

Although negotiations continue over payment details for providers seeking out-of-network payments, many tracking surprise healthcare bill legislation expect it to pass before Congress adjourns in a month.

“I’m really hopeful we can get it across the finish line this year,” Sen. Maggie Hassan (D-N.H.) said Nov. 21. She is a key ally of Sen. Bill Cassidy (R-La.), who has sponsored a Senate bill to address the issue and is involved in negotiations to create a consensus bill.

Hassan’s optimistic view bucks pessimism in recent weeks by many policy advisers, who doubted that the disagreement over the proper way to compensate affected providers could be resolved quickly. Other policy advisers have become optimistic about 2019 passage of surprise-bill legislation.

“I don’t want to be overly optimistic but it feels like there is a lot of momentum behind surprise billing,” Marc Goldwein, senior vice president and senior policy director for the nonpartisan Committee for a Responsible Federal Budget, said in an interview.

The push to enact surprise-bill legislation has been strongly backed by hospital advocates, but the various measures have become entangled in a disagreement over how to compensate out-of-network providers involved in surprise-bill disputes.

Several bills have relied on a rate-setting approach advocated by health plans, which has drawn congressional support because it would provide the biggest federal savings — through reduced subsidies to Affordable Care Act marketplace plans — which in turn could be used to fund other healthcare legislative priorities.

But Cassidy and Hassan have urged use of an arbitration system in which an arbitrator decides disputed rates using guidance from legislators, such as the approach used under New York state law.

Hassan said ongoing negotiations have sought a compromise that would entail replacing the arbitration benchmark used in New York — 80% of billed charges, which critics say fuels spending increases — with existing in-network rates.

Although the approach would produce less savings than the rate-setting approach, it still would result in “billions” of dollars in federal savings that could be applied to other initiatives, Hassan said.

“There are still adjustments that need to be agreed to, but there is a real desire to get this done,” Hassan said.

Other provisions she has advocated in the ongoing surprise-bill negotiations include:

• Allowing additional flexibility to assure the arbitration approach will work in different parts of the country
• Creating an independent dispute resolution approach
• Allowing rural providers to contest the benchmark rate if it is unworkable

The role of ‘bad actors’

“We’re working in a way to not allow our bad actors to do anything like this on the backs of patients,” Hassan said, referring to providers who intentionally stay out of health plan networks in order to maximize their income from patients.

Part of the legislative battle regarding the approach to determining provider payments has centered on the perspective of specialty practices backed by private equity funds, which oppose a rate-setting approach. Private equity interests paid for an advertising and lobbying push during Congress’s August recess, eliciting a sharp pushback from legislators.

“Seeing those attacks, they were very disingenuous; I don’t think they necessarily have the patient’s best interest in mind,” Tara O’Neill Hayes, deputy director of healthcare policy at American Action Forum, said in an interview.

Prospects for a drug-cost bill remain uncertain

Policy advisers were less certain that Congress would enact legislation this year to address high drug prices. The House of Representatives and Senate are split between bills that include many of the same provisions but differ over whether to allow the U.S. Department of Health and Human Services to negotiate bill prices within Medicare Part D.

“On drugs, there is good shot here, but it is going to require a bigger push,” Goldwein said.

The surprise-bill legislation is “intellectually cleaner” than the drug bills and has less opposition, Michael Chernew, a healthcare policy professor at Harvard Medical School, said in an interview. For those reasons, he views the drug bill’s passage as less likely this year.