Congress Releases Surprise Billing Compromise

Creates a complex arbitration process between insurers/ self-insured plans and medical providers…………Arbiters are prohibited from taking into account the provider’s “list price” billed charges……………..

MyHealthGuide Source: Self-Insurance Institute of America, 12/14/2020

After nearly two years of negotiations and discussions between providers, insurers and policymakers on the issue of surprise medical billing, Congress has released draft legislative text of the No Surprises Act that seeks to protect patients from the harm of such surprise bills.

As many of you know, the Self-Insurance Institute of America, Inc. (SIIA) and its members have been heavily involved in these discussions, providing expert advice to White House officials, Congressional leadership, and staff for the House Energy & Commerce, Education & Labor, and Ways & Means Committees, along with the Senate HELP Committee.

From the beginning, SIIA has advocated for three main policy components related to surprise billing:

  • Protect patients and families from surprise medical bills sent by out-of-network providers.
  • Maintain fair and equitable payments for providers with a regional market-based benchmark standard.
  • Reduce consumers’ health insurance premiums and taxpayers’ costs by avoiding an arbitration process that adds unnecessary cost, delay and bureaucracy to the health system and is particularly harmful for smaller and medium sized self-funded employer groups.

The centerpiece of the No Surprise Act is protecting patients from out-of-network surprise medical bills, while creating a complex arbitration process between insurers/ self-insured plans and medical providers should a negotiated payment not be agreed upon between these payers and the providers within a 30 day time frame. Beyond provisions regarding out-of-network emergency and ancillary provider charges, the legislation also includes language prohibiting surprise billing surrounding air ambulances.

While the legislative details are outlined below in more detail, many of which are dependent on future federal rulemaking, SIIA recognizes both the need to solve the issue of surprise billing, while also ensuring that self-insured plans are not placed under more onerous regulatory requirements in helping to protect their plan participants.

Summary of Key Provisions

Section Summary

Legislative Text

Patient Protections & Notification

  • Patients cannot be balance billed (1) by out-of-network providers at in-network facilities (with limited exceptions, if consent is obtained 72 hours earlier), (2) for out-of-network emergency care, and (3) in cases where patients are transferred from an in-network facility to an out-of- network facility without sufficient notice and consent.
  • Requires self-insured plans to provide an Advanced Explanation of Benefits for scheduled services to patients at least three days in advance, which would include treatment, expected cost and network status of provider.
  • Providers must verify three days in advance of services, and not later than one day after scheduling, the type of coverage the patient is enrolled in and good faith estimate of service.
  • Requires health plans to provide price comparison tool for consumers.
  • Certain out of-network provides are prohibited from balance billing patients unless they give appropriate notice of network status and an estimate of charges 72 hours in advance. If the appointment is made within that time frame, the patient must receive notice the day of the appointment.
  • The proposal prohibits air ambulance providers from billing patients more than the in-network cost sharing amount, and institutes an arbitration process for out-of-network providers.

Independent Dispute Resolution (IDR) / Arbitration

  • Insurers/self-insured plans and providers have a 30-day window in which to negotiate and settle out-of-network claims between these payers and the providers. During this period, the insurer/self-insured plan may pay the provider any amount it deems satisfactory.
  • If parties cannot reach agreement during the 30-day window, either party may enter into IDR or baseball-style binding arbitration. Under IDR, both parties submit a best and final offer, with an arbiter choosing the prevailing offer. The loser pays all associated arbitration costs. Providers may batch similar services into one proceeding if claims are with the same issuer.
  • Parties can come to an agreement on their own during the IDR period, and can choose to leave IDR at any time if that is the case.
  • Under the IDR, the arbiter is directed to consider in-network median rates, as well as other relevant information, including providers experience and training, patient acuity, complexity of procedure, facility type, scope of service, good faith efforts to enter into a network agreement, prior contracted rates over the last 4 plan years, among other factors to be determined by federal rulemaking.
  • The arbiter is prohibited from taking into account the provider’s “list price” billed charges.
  • After IDR, a 90-day cooling off period is established in which neither party can enter again into IDR for the same item or service.

Implementation Timeline

  • The proposal requires HHS and Treasury to establish details through rulemaking for the surprise billing provisions no later than July 21, 2021.

State All Payer Claims Database: Self-Insured Plan Participation

  • The No Surprise Act also includes a provision related to increasing the transparency of health claims through a state All Payer Clams Database (APCD). For self-insured plans, the proposal requires the Secretary of Labor to establish a national standard for plans to report to their health claims data to states that establish their own APCD.

SIIA remains engaged in discussions with congressional staff and outside stakeholders regarding the final details of the No Surprise Act. Considering the short period of time left in the session, it is likely that this compromise language developed by the four committees of jurisdiction may be included in a year-end spending package later this week, with few changes made outside of technical corrections.

With the tight timeline in mind, we ask that you provide any substantial support or opposition by COB tomorrow, December 15th. If you have questions related to the proposal, or would like to talk further, please contact Ryan Work, SIIA’s vice president of government relations, at rwork@siia.org.

About SIIA

The Self-Insurance Institute of America, Inc. (SIIA) is a dynamic, member-based association dedicated to protecting and promoting the business interests of companies involved in the self-insurance/alternative risk transfer (ART) industry, both domestically and internationally. Visit www.SIIA.org.

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