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What’s Next for the House Surprise Billing Package?

There has been a surge of congressional activity relating to the various surprise billing proposals. What started out as an issue for a small Senate working group last year has turned into a major health priority for both parties in both chambers. Over the past year, discussion drafts were released, bills were introduced, and lawmakers sought feedback from stakeholders in an effort to produce comprehensive bipartisan legislation. Three major bills have emerged:

  • The No Surprises Act, introduced by the leaders of the House Energy and Commerce Committee

  • The Stopping the Outrageous Practice (STOP) of Surprise Medical Bills Act of 2019 (S 1531), introduced by Senators Bill Cassidy (R-LA), Michael Bennet (D-CO), Todd Young (R-IN), Maggie Hassan (D-NH), Lisa Murkowski (R-AK) and Tom Carper (D-DE)

  • The Lower Health Care Costs Act (S 1895), introduced by the leaders of the Senate Health, Education, Labor and Pensions (HELP) Committee

Most of the recent activity on surprise billing has focused on the House No Surprises Act. Representatives Frank Pallone and Greg Walden sought feedback on the No Surprises Act discussion draft and held a hearing on the topic on June 12, 2019, entitled “No More Surprises: Protecting Patients from Surprise Medical Bills.” On July 9, 2019, Representatives Pallone and Walden formally introduced a new version of the bill.

On July 11, 2019, the Energy and Commerce Health Subcommittee held a mark-up on a number of bills, including the No Surprises Act. During the mark-up, there was unanimous support to address surprise billing and protect patients. However, some members raised concerns about the way the bill dealt with payment rates: tying payments rates to a benchmark based on in-network rates in certain geographic regions with no ability for the provider to appeal the rate. While no amendments were offered to change this approach, there was dialogue among committee leadership and other members about working together to come to a bipartisan consensus agreement. The No Surprises Act thus advanced from the subcommittee to the full committee.

On July 17, 2019, the Energy and Commerce Committee held a mark-up of 26 bills, which included the No Surprises Act. A last-minute agreement was reached to amend the benchmark rate by adding an arbitration process to address payment disputes for certain surprise billing situations. The arbitration amendment was pushed by Representatives Raul Ruiz (D-CA) and Larry Bucshon (R-IN), and reflected a delicately crafted compromise with the bill sponsors, Pallone and Walden. The addition of an arbitration process accommodates some of the concerns that physicians and hospitals have regarding the median in-network benchmark rate approach. This amendment was added with no opposition.

The committee also voted to combine the surprise billing legislation within a larger health extender bill. The extender package includes the Medicare and Medicaid programs that need reauthorization or additional funding prior to September 30, 2019. These programs include, but are not limited to, the community health centers, special diabetes program, the teaching health centers and the Medicaid DSH allotments. Collectively, the package including the extenders and the No Surprises Act is referred to as HR 2328.

What’s Next?

The week of July 22, 2019, is the last week the House is in session before the month-long August recess. While there were discussions about bringing this package to the floor before recess, it is unlikely that this will happen. In fact, the House Education and Labor Committee, which oversees employer-based health insurance plans and has partial jurisdiction over surprise billing, will likely also need to mark-up the legislation after the August recess. Following that mark-up, there could be additional adjustments to reconcile any changes from committee and leadership.

If the surprise billing legislation is maintained as part of the health extenders package, it is likely to see floor action in September. Stakeholders, however, remain divided on benchmark and arbitration, and now will have the month of August to make their case to members. This could influence timing and outcome in September. And, let’s not forget that the Senate’s surprise billing bill awaits floor consideration as well and does not include arbitration at this time. For now, we have public attention, members wanting to pass health legislation, and time. We will see how these factors come together in September.


© 2020 McDermott Will & EmeryNational Law Review, Volume IX, Number 206


About this Author

Rachel Stauffer, McDermott Law Firm, Washington DC, Health Policy Consultant

Rachel is a highly experienced government relations and legislative affairs strategist and advocate who is informed by a solid foundation of health policy knowledge.

Prior to joining McDermottPlus, Rachel served as the director of policy and government relations for a health IT contractor, where she developed the company’s first strategic plan for government relations. She grew the company’s profile on Capitol Hill by establishing new relationships with key leaders in the federal, state and military health program space. As a result, the company...

Katie Waldo Healthcare Attorney

Katie is an experienced government relations strategist who helps clients navigate the complex issues surrounding Medicare, Medicaid and the healthcare marketplace.

Katie works with clients to represent their needs before the US Congress and the US Department of Health and Human Services (HHS) and its agencies by relying on extensive experience as a policy advisor on the Medicaid and Medicare programs, as well as the 340B program and other aspects of the Public Health Service Act. She anticipates the effects of state and federal policymaking on issues impacting their businesses and crafts proactive and comprehensive legislative strategies.

Katie served as a senior analyst at the Medicaid and CHIP Payment and Access Commission (MACPAC), where she developed policy recommendations and conducted legislative analyses related to Medicare and Medicaid issues in support of Congress and HHS. At MACPAC, Katie regularly interpreted and analyzed large data sets for reports.

Prior to her work with MACPAC, Katie served in Senator Chuck Grassley’s (R-IA) office as a health policy fellow where she conducted research and analyses on health policy options. She also worked at the George Washington University, where she led the Teaching Health Center Graduate Medical Education evaluation.

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