Congress Addresses Surprise Billing, but Concerns Remain

ASPS has been a leading voice on the balance billing issue, maintaining opposition to out-of-network (OON) billing legislation as a key priority in the Society's advocacy agenda. By actively working on the issue at both the federal and state level, ASPS has collaborated with various stakeholders and state society partners to shape and improve surprise billing proposals and combat narrow insurance networks.

The Society's extensive efforts around OON billing in the 116^th Congress came to a head recently with the passage of the federal end-of-the-year package on December 21, which included a new balance billing policy called the No Surprises Act. As is often the case in the legislative process, the efforts of ASPS and a broad coalition of organized medical specialties produced substantial improvement to a final package that still ultimately fell short of a clear win for physicians. Fortunately, patients will be held harmless and spared shocking bills for the balance of what's owed to an out-of-network physician.

However, ASPS remains concerned that the structure of the No Surprises Act could result in the eventual accelerated narrowing of networks as private payers stop contracting with certain specialties unless providers agree to in-network payments under the median. The structure of the law's payment dispute system is, according to the Congressional Budget Office, likely to drive in-network payments toward the median.

By the numbers: A consistent voice on balance billing

ASPS has focused intensively on out-of-network billing legislation at the state level since the issue became "nationalized" in 2016 and appeared in multiple states simultaneously with each new legislative session. When this issue moved to Congress in 2018, ASPS worked with leading voices on the issue, including Senators Bill Cassidy, MD (R-LA) and Sherrod Brown (D-OH) in the initial drafting stages of federal proposals. Through the entirety of the 116^th Congress, ASPS staff and physician leaders also participated in various coalition efforts within the physician community; convened regular meetings with health care committee staff and key balance billing influencers on Capitol Hill; and lobbied extensively against federal bills that would have had devastating effects on doctors.

In the 116^th Congress, the Society:

• Sent 58 letters to Congress articulating the Society's balance billing positions, articulating concerns and providing specific recommendations
• Signed on to 28 coalition letters to further strengthen the House of Medicine's balance billing strategy
• Activated 9 physician grassroots campaigns encouraging ASPS members to contact their members of Congress to support ASPS's balance billing principles
• Conducted more than to reinforce the need for an equitable solution to balance billing during the Society's 2019 Advocacy Summit and 2020 Regional Fly-Ins.

The final push

As negotiations in Congress around the end-of-the-year package reached their final stages, ASPS worked to ramp up its advocacy efforts in response to the proposed OON billing provisions.

While acknowledging that concessions were made in an effort to make the bill more palatable to physicians, ASPS noted in a December 14 letter to Congressional leadership that the legislation is still, "on balance, largely skewed in favor of payers over physicians, particularly those in small and rural practices."

The Society also activated a grassroots alert to the full U.S. membership encouraging physicians to contact their representatives and request amendments to the legislation. ASPS staff worked with the New York Society of Plastic Surgeons (NYSSPS) to help mobilize members on the issue, which has also been a legislative priority for NYSSPS at the state level.

In the week leading up to Congress's vote on the package, ASPS staff participated in four calls with committee staff, members of Congress and among the House of Medicine. In spite of the communication throughout the process between organized medicine and congressional policymakers, it was clear in these final conversations that very little room remained to alter the legislative proposal after it was released. Of note, the final agreement – a product of bicameral, bipartisan negotiations between three committees – was released just days before Congress was slated to adjourn.

Analysis of the new balance billing policy

ASPS's primary concerns with OON billing provisions in the omnibus spending bill largely fall in the area of independent dispute resolution (IDR), a process for determining appropriate payment for out-of-network care when there is a dispute between a physician and a payer. ASPS believes the structure of the No Surprises Act will increase the likelihood of these disputes, and as a result, the IDR's imbalance in favor of payers is a substantial problem. This imbalance exists because (1) the median in-network rate is listed as a standalone factor for the arbitrator to consider when selecting between the provider or the payer payment request, and (2) any reference to physician charges or charge-based data is expressly prohibited.

State experiences show that a legislature directly and exclusively referencing a particular arbitration criterion is viewed by arbitrators as the legislature deeming that criterion the most appropriate. In the case of the federal OON policy, which highlights the median in-network rate, his results in insurers' submissions to the arbitration process looking more "reasonable" because of their proximity to the congressionally-favored median in-network rate.

Additionally, the law creates a 90-day cooling off period between the parties to an IDR. While there are structures in place to bring all disputed payments that accrue during that 90-day period to IDR in one batch on day 91, there is tremendous concern that small and rural practices could have a difficult time going 90 days without revenue, and there is no requirement that they be paid for inadvertent or emergency out-of-network care.

Progress, but no time for complacency

While the OON billing provisions in the final federal relief package represent significant progress relative to the concepts that were initially introduced – which included mandatory in-network status for certain specialties, reimbursement for out-of-network services fixed at the in-network rate and a $1,500 threshold to access IDR – their passage also signals that the specialty's work on balance billing continues. This action by Congress is ultimately a win for insurers that demands continued federal work and further increases the urgency of all state OON advocacy efforts.

ASPS will remain engaged in efforts to push for concessions to the IDR process to better support small and medium-sized practices, as well as continue to work closely with state society partners on state OON reform.