Bipartisan Support Builds For Limits On Surprise Medical Bills

KFF Health News | By Shefali Luthra,

Emmarie Huetteman

Published February 5, 2019 at 5:00 AM EST

"There does seem to be across-the-board understanding that what's happening to patients right now isn't right or fair," Sen. Maggie Hassan, D-N.H., said about surprise medical bills.

Surrounded by patients who told horror stories of being stuck with hefty bills, President Trump recently waded into a widespread health care problem for which almost all people — even those with insurance — are at risk: surprise medical billing.

Trump's declaration that taming unexpected bills would be a top priority for his administration echoed through the halls of Congress, where a handful of Republican and Democratic lawmakers had already been studying the problem.

The sudden presidential interest has lawmakers on both sides of the aisle expressing optimism about attacking a problem that has affected 57 percent of American adults, according to a University of Chicago survey conducted in August 2018.

Sen. Lamar Alexander, the Tennessee Republican who chairs the influential Health, Education, Labor and Pensions Committee, recently told reporters that he expects to see surprise-billing legislation "in the next several months."

Alexander is encouraged by the movement, said a committee spokesman — giving a particular nod to the efforts of Sen. Bill Cassidy, R-La. "The chairman looks forward to reviewing their work and hopes it leads to a bipartisan consensus on how to address the issue," the spokesman added.

"Indications in Congress have always been that this would be something they could do on a bipartisan basis," said Paul Ginsburg, a health economist at the Brookings Institution.

Attention to surprise billing, which involves charging patients for care that is more expensive than expected or not covered by their insurance, has grown following an ongoing Kaiser Health News-NPR Bill of the Month project.

Still, the details of a possible solution remain up in the air.

The Trump administration hasn't laid out precisely how it would take on surprise bills. But key lawmakers, including Alexander and Cassidy, have met with administration officials to discuss the problem of how to reduce health care costs. Trump administration officials have made it clear that they are looking at surprise billing within this context.

With an eye toward drafting legislation, these two senators and several others have been consulting with billing experts, as well as state and local officials, about the biggest challenges and most promising approaches being used around the country.

And though Senate Majority Leader Mitch McConnell, R-Ky., has yet to address the issue, House Speaker Nancy Pelosi, D-Calif., said it would be a priority.

"Ending surprise billing is an important part of Democrats' ongoing effort to lower out-of-pocket health costs, and we'll be working on it in the coming Congress," said Henry Connelly, a Pelosi spokesman.

Previously introduced bills would impose new notification requirements, as well as limitations on what doctors and hospitals might charge patients. They would regulate bills for either emergency care at an out-of-network facility or nonemergency care when the facility is in network but the doctor isn't.

A draft bill pushed by Cassidy, a gastroenterologist and the leader of a small, bipartisan group of senators studying the issue, would cap what patients pay and prohibit balance billing — when a patient is expected to make up the difference between what the provider charged and what the insurer paid. Instead of arbitration, the state would set the amount a health plan must pay. In the absence of a local policy, health plans would default to a federal formula outlined in the bill. (This is similar to laws passed in California and Connecticut.)

A bill from Sen. Maggie Hassan, D-N.H., would tackle the issue by preventing a hospital, physician group or other medical provider from charging patients more for an emergency procedure than they would have expected to pay for in-network care. It would then establish an arbitration process to determine what the patient's health plan should pay. (This is similar to laws passed in New York and New Jersey.)

A bill from Texas Democrat Lloyd Doggett, chairman of the House Ways and Means Committee's Health Subcommittee, introduced during the last Congress with Sen. Sherrod Brown, D-Ohio, would require hospitals to notify patients whether the hospitals — and the doctors and other providers that patients would see there — are in network. Hospitals would also have to tell patients how much they could expect to pay out of pocket. Without at least 24 hours' notice and the patient's consent — or if the patient was receiving same-day, emergency treatment — the hospital would be able to charge the patient no more than an in-network provider would.

To draw attention to the issue, Hassan intends to bring to this week's State of the Union address a guest who was billed more than $1,600 for a trip to an in-network emergency room. The patient learned after the fact that the doctor she briefly saw there was out of network.

"There does seem to be across-the-board understanding that what's happening to patients right now isn't right or fair," Hassan said.

Other members of Congress, including Sen. Amy Klobuchar, D-Minn., and Sen. Tammy Baldwin, D-Wis., are expected to bring guests with painful, personal stories regarding the high cost of prescription drugs.

For its part, the administration says its commitment to addressing surprise medical bills is firm.

"President Trump has identified surprise medical bills as a serious concern of the administration. Protecting patients from these outrageous and unexpected bills and charges is a top priority for Secretary [Alex] Azar," said Caitlin Oakley, a Department of Health and Human Services spokeswoman.

Hassan said she hasn't heard from the White House. But as Congress shifts its focus away from the partial government shutdown, she predicted, surprise billing could emerge as a legislative priority. She said that she and Cassidy have coordinated on the issue.

Both Hassan's and Cassidy's bills "would go a long way toward protecting patients," suggested Zack Cooper, a Yale University health economist who researches surprise billing. Hassan's legislation, he said, has the additional benefit of likely bringing down health care costs.

"There are a lot of issues that can't be fixed or at least can't be fixed easily. This is an issue that causes immense pain and is quite visceral and can be fixed," Cooper said.

And federal legislation is likely necessary, experts say. Some states have passed laws meant to curb surprise billing and protect patients from the costs — but those laws don't apply to self-insured large employers, which fall under federal jurisdiction and affect more than 60 percent of people who get insurance through work.

The presidential bully pulpit could be hugely influential — in particular, Ginsburg suggested, by "leaning on Congress" to bring legislation to Trump's desk.

And new legislation probably is the most effective vehicle. It's unclear what kind of executive action HHS could take without Congress.

"Some creative lawyers could come up with creative interpretations [of existing laws] and lead to smart policy," said Barak Richman, a Duke University law school professor who focuses on health policy.

But reinterpreting federal law would almost certainly invite legal challenges, he added.

Already, competing industry groups are lobbying to put their stamp on any federal policy. The emergency physicians trade group has backed an approach like Hassan's, while the insurance lobby is calling for a Cassidy-style bill.

When asked about the industry's response, Hassan said she has gotten "a variety of feedback — as you would expect."

Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that isn't affiliated with Kaiser Permanente.