Anna Moneymaker / Anna Moneymaker
The détente that allowed Congress to pass a bill to curb surprise medical bills has crumbled. A bipartisan group of 152 lawmakers has attacked the Biden government’s plan to regulate the law and medical services, warning of dire consequences for underserved patients.
For years, patients have faced these massive, unexpected bills when seeking treatment from hospitals or doctors outside their insurance company’s network. This often happens when patients seek treatment in a networked hospital but a doctor such as an emergency doctor or anesthesiologist treating the patient is not covered by insurance. The insurer would only pay a small part of the bill and the unsuspecting patient would be responsible for the rest.
Congress passed the No Surprises Act last December to protect patients from this experience after long, highly competitive negotiations with care providers and insurers resulted in an agreement that both parties’ lawmakers deemed fair: a 30-day negotiation period between Healthcare providers and insurers in the event of billing disputes; This would be followed by arbitration if no agreement can be reached.
The rule, which would go into effect in January 2022, effectively leaves patients out of the fray. According to the new policy, providers and insurers must clarify this among themselves.
In releasing the rule, the Centers for Medicare & Medicaid Services pointed to an analysis by the Congressional Budget Office that the No Surprises Act would cut health insurance premiums by about 1% and reduce the federal deficit by $ 17 billion.
Lower premiums are a particularly important goal for the administration and some of its allies, such as patient advocacy groups and labor unions.
But now many doctors, their medical associations and members of Congress are shouting badly, arguing that the enforcement rule published in September by the Biden government was favoring insurers and not in the spirit of the legislation.
A letter of complaint signed by 152 legislators
“The recent government proposal to start enforcing the law does not uphold the intent of Congress and could provide an incentive for insurance companies to set artificially low payment rates, which would constrict provider networks and potentially force small practices to close Restrict patient access to care. ”Rep. Larry Bucshon, R-Ind., who is a doctor and who helped on a letter of complaint this month, shared a written statement with us.
Nearly half of the 152 MPs who signed this letter were Democrats, and many of the Doctors in the House of Representatives signed. But the backlash has not won the support of some powerful Democrats, including Rep. Frank Pallone, NJ, chairman of the Energy and Trade Committee, and Senator Patty Murray, Washington, chairman of the Senate Committee on Health, Energy, Labor and Pensions, who is in charge of the administration wrote urging officials to move forward with their plan.
Some members of Congress who are also doctors held a conference call with the government late last month to complain, according to Legislature aides on Capitol Hill who could not speak because they did not have permission to do so. “The doctors in Congress are furious about it,” said a member of staff familiar with the call. “They wrote the law as clearly as they did after a year or two of debating which way to go.”
The controversy concerns a section of the proposed final settlement that focuses on arbitration.
The Legislature’s Letter – Organized by Reps Thomas Suozzi, DN.Y., Brad Wenstrup, R-Ohio, Raul Ruiz, D-Calif. and Bucshon – noted that the law specifically forbids arbitrators from favoring a particular benchmark in order to determine what vendors should be paid. Expressly excluded are the tariffs paid to Medicare and Medicaid (which tend to be lower than the tariffs of the insurance companies) and the average tariffs that doctors charge (which are usually much higher).
Arbitrators are instructed to consider the median of the on-line tariffs for services as one of several factors in determining a fair payment. They would also need to take into account aspects such as the doctor’s training and quality of results, the local market share of the parties involved, where one side may have an oversized influence, the patient’s understanding and complexity of the services, and the history, among other things.
But the proposed rule does not instruct the referees to weight these factors equally. It requires that they start with what is known as the qualifying payment amount, which is defined as the median rate the insurer pays to on-grid providers for similar services in the region.
If a doctor thinks he deserves a better tariff, he or she may point out the other legally allowed factors – which doctors in Congress believe are contrary to the bill they have drafted.
The provisions in the new rule “do not reflect the way the law was drafted, do not reflect policies that Congress could have passed, and do not create a balanced process for settling payment disputes,” the legislature told administrative officials in the letter.
The result, argue opponents of the rule, would be a process that favors insurers over doctors and drives prices too low. They also argue that doing so would harm the networks, especially in rural and underserved areas, as it incentivizes insurers to lower the tariffs they pay to on-grid providers. When the in-network rates are lower, the arbitration failure rate is also lower.
This is the argument specifically made in a Texas Medical Association lawsuit against the Biden government.
California already has something similar to the Biden Rule in place
The lawsuit alleges that in a handful of states, like California, that already have a strategy similar to the rules written by the Biden team, a recent study shows that payment rates are being lowered. Citing this data and a survey by the California Medical Association, the lawsuit states that insurers now have an incentive to end contracts with better-paying in-network providers or force them to accept lower rates because they are out-of-network – Providers then are subject to the same lower baseline.
Jack Hoadley of the Health Policy Institute at Georgetown University says the results could go either way depending on whether insurers or providers are stronger in a given market.
“There are some markets where you have a dominant insurer and you can tell providers, ‘Take it or leave it. Since we represent most of the insurance business, we represent most of the patients, ”says Hoadley.
But there could be a stronger group of providers elsewhere. “All anesthesiologists could be in a big practice in one market, and they can basically tell insurers in that market, ‘take it or leave it,'” he says.
Whether providers’ networks will be reduced remains an open question, says Hoadley. Surveys cited in the Texas lawsuit also show that usage of in-network services has increased in some states with benchmarks similar to national law, although it is not known whether more doctors have joined networks or more people have switched to intra-network providers are.
It is also unclear whether the administration will take into account the concerns of the legislature and change the regulations. Some Hill employees involved in the pushback believe the process is likely too far advanced to be changed and that it should be resolved in court. Others see an opportunity for a last minute shift.
A House staff member notes that 70+ Democrats complaining to a Democratic White House could have an impact.
“In combination with all the craziness of the surprising accounting war of the last few years and the legal threat, I think there is still a lot of ball game left,” says the employee.
Kaiser health news is a nationwide newsroom and editorially independent broadcast of the Kaiser Family Foundation. KHN is not affiliated with Kaiser Permanente.