COVID-19 surprise billing ban in 2020 may offer lessons for 2022

Over the last eight months, providers have gained experience dealing with a limited ban on surprise billing. Those insights may prove useful if a broader ban remains as part of Congress' and President Donald Trump's passage of year-end budget and COVID-19 relief package, which currently includes a permanent ban on surprise billing starting in 2022.

Congress last March charged HHS with quickly distributing $125 billion in COVID-19 relief funds to providers bleeding revenue from volume losses and gave the agency few instructions on how to do so. The Trump administration was unsuccessful in pressuring Congress to pass comprehensive surprise billing reform and saw the Provider Relief Fund as an opportunity to protect consumers, a White House official said. The day before grants started going out, HHS announced that providers getting the funding could not balance bill COVID-19 patients.

The policy was designed to ensure that patients wouldn't be subject to higher costs if they had to go to another provider out of their insurance network due to potential capacity issues, the White House official said.

The policy also insulated the government from potential public relations issues, said Joe Grogan, a former White House Domestic Policy Council chief who is now a nonresident senior fellow at the USC Schaeffer Center for Health Policy & Economics.

The process of determining what an out-of-network patient would have paid if the services had been in-network isn't necessarily a straightforward calculation, said Jack Hoadley, a research professor emeritus at Georgetown University's McCourt School of Public Policy. Patients' out-of-pocket costs may be influenced by factors like progress toward meeting a deductible, and providers have to coordinate with insurers they don't contract with.

"I think we could learn something if we had a source of some data to study. What did the insurers actually do? If doctors were out of network, were they paid at something comparable to the payment standard for proposals in Congress?" Hoadley said.

Complying with a balance billing ban is easier for larger organizations with more sophisticated systems, said Erin Fuse Brown, an associate professor of law at Georgia State University. The pilot could produce insights about how well patients were protected from surprise bills and how much insurers actually paid providers, but observing state legislation such as a new surprise billing law in Indiana could be more instructive, Fuse Brown said.

The White House official said the COVID-19 surprise billing ban could be a "very ripe research opportunity," and that the lack of substantive pushback from healthcare providers could be a positive sign for more comprehensive reform.

However, there are limits to the conclusions that can be drawn from such a narrow policy.

For one, it is unclear exactly how many providers were affected by the ban. According to HHS data, 394,146 providers with unique tax identification numbers had agreed to the terms and conditions of the grants as of Dec. 11.

Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy, said it is unclear whether larger staffing firms that have relied on surprise billing for revenue accepted Provider Relief Fund grants.

One of providers' most vehement arguments against prominent surprise billing reform proposals is that they could hurt in-network physician payment rates as market dynamics change. The policy is temporary, which means the full market dynamics won't play out, Adler said.

"There's not much time to do the negotiations, and it's a pretty small part of your care. It's hard to see much effect from this policy," Adler said.

Even those that agreed to comply with the ban saw small populations impacted, said Rick Kes, a partner and senior analyst with RSM US. That means some providers were able to handle them on a nearly case-by-case basis, which may not be replicable when the ban is expanded to all services and disease areas. "I think the scenario is quite different, and there is not a lot to be learned beyond procedural process within your billing system," Kes said.

There also was not a clear mechanism to enforce the ban or an active monitoring process, Hoadley said. Providers could face False Claims Act liability for violating grant terms, but auditing and reporting required by HHS may not necessarily measure compliance with the balance billing ban.

The White House official said the pilot isn't an ideal simulation of broader surprise billing reform, but could still be useful in the policymaking process. If the new ban is enacted, HHS will pursue rulemaking to round out lawmakers' outline for the negotiation and arbitration processes by 2022.

Grogan said part of the policy's value was keeping the surprise billing issue front and center in the national policy debate, especially after Congress failed to include a provision in its large COVID relief package last March.

"Even if we were trying to do nothing more than messaging, I still think it was a worthwhile endeavor," Grogan said.