Physician groups' public relations, advertising and lobbying blitz against Congress' front-line proposals to end surprise medical bills reached such a pitch this month that congressional staff worry the entire effort will collapse.
A dark-money group is spending millions on an ad campaign targeting vulnerable senators. State and national hospital and physician groups are working their delegations.
And all the opposition is jeopardizing Congress' ability to get anything done this year. Some on Capitol Hill are convinced that's exactly the lobbying groups' goal.
"It's not a matter of tweaks to get providers to stand down, it's that provider groups don't want to see a solution here," said one congressional aide close to negotiations, who requested anonymity to speak freely. "They want the status quo. They've charted out where Congress could end up, and they are ready for the whole thing to come down. For them, surprise billing can stay in the mix."
Another staffer said the aggressive campaigning has left policy aides skeptical that the groups actually do want to get patients "out of the middle."
"Our question is, what happened to their commitment to protecting the patients?" that aide said, adding: "It shows just how big of a cash cow this practice is, that they're willing to pour millions of dollars into fighting these bills."
Shawn Gremminger, senior director of federal relations for the consumer advocacy group Families USA, concurred. "Both sides (insurers and providers) are looking at this from a risk-reward perspective of: What makes the most sense?" Gremminger said. "For them, doing nothing is the best solution, which pretty much tells you why we're seeing what we're seeing, although they won't publicly say it."
Provider groups are adamant this isn't the case.
"We want to see legislation," said Chip Kahn, CEO of the Federation of American Hospitals, which represents for-profit hospitals. "It's a problem we can't solve ourselves—I wish we could—and we need legislation to ensure patients don't suffer from sticker shock, that their copayments are reasonable and within the bounds of their coverage."
Tom Nickels, executive vice president for the American Hospital Association, said that while the group is working with Congress on a compromise, an "up-or-down vote on either the Senate HELP or House Energy and Commerce Committee proposal is unlikely to be the choice Congress will face on this matter."
Hospitals and physician groups are each waging war on the issue, but they aren't necessarily on the same page about what a policy fix should look like—beyond the fact that they oppose the proposals that set a "benchmark" rate cap of charges for all out-of-network treatment proposed by Senate and House health committee leaders.
These measures would use a typical insurer-negotiated rate as the benchmark for what insurers would pay for out-of-network treatment. Senate health committee Chair Lamar Alexander (R-Tenn.) and ranking member Patty Murray (D-Wash.) co-sponsored the policy in the upper chamber and Energy and Commerce Chair Frank Pallone (D-N.J.) and ranking member Greg Walden (R-Ore.) led the effort in the House.
But that hasn't softened the opposition from either doctors or hospitals. The growing perception on Capitol Hill is that balance billing, reportedly isolated to bad actors, has trickled into the provider business model as leverage for higher rates—particularly with the rise of physician staffing companies. Provider groups counter this by saying they want to contract with networks. But they also want leverage with insurers.
Meanwhile, they have accelerated efforts to prevent a vote on the benchmark proposal since lawmakers left Washington for their home states for the August recess. One aide described the past month as a "pummeling" of lawmakers—in district meetings, in local newspapers and on TV. The most visible opposition came from physician groups and their coalitions.
In Alexander's home state of Tennessee, a series of op-eds coordinated by the Tennessee Medical Association has gone after his legislation. TMA Vice President Dave Chaney said the group decided on an opinion campaign shortly after discussing the health committee bill with Alexander.
Chaney said the TMA is lobbying the state's delegation around a provider-friendly arbitration proposal by Reps. Raul Ruiz (D-Calif.) and Phil Roe (R-Tenn.), both physicians.
The organization has also coordinated with a separate coalition called Out of the Middle. The Out of the Middle website lists the American College of Emergency Physicians, American Society of Anesthesiologists, College of American Pathologists, the American College of Radiology, specialty surgeon groups and others as its members, but has no contact information.
Lawmakers aren't just facing physician groups and their medical associations. The AHA has also asked its member hospitals to go directly to their representatives and senators to lobby against the benchmark proposal.
Meanwhile, opinion-writing campaigns similar to what's running in Tennessee have sprung up around the country, with messages tailored to regional politics. To win over conservatives, these op-eds refer to the benchmarking proposal as rate-setting.
"Giving the government greater control over our health care is a treacherous road," said one op-ed in North Carolina's Jacksonville Daily News. The author, Jay Reinstein, is a local community leader recently diagnosed with Alzheimer's disease.
His argument appeared tailored for North Carolina Sen. Thom Tillis, a vulnerable Republican. A similar point was made by a Scottsdale, Ariz., city councilwoman in the Scottsdale Independent. GOP Sen. Martha McSally faces a potentially tough race in 2020.
To appeal to Democrats, editorials say benchmarking threatens rural hospitals and could undercut the healthcare safety net—as was opined in Minnesota's Post-Bulletin in late July by Dr. Timothy Johnson, president-elect of Minnesota's ACEP chapter.
Even more ubiquitous are dark money-funded TV ads, targeting senators everywhere but especially vulnerable ones.
The Center for Responsive Politics first reported the August blitz from the obscure group Doctor Patient Unity. Its website doesn't publish any affiliations, and the physical address listed belongs to the law firm Holtzman Vogel Josefiak Torchinsky. The firm declined to give any information about the group, citing client confidentiality.
Doctor Patient Unity has spent about $13 million on TV ads, Bloomberg Government found in its own investigation. The ads attack the Senate and House "rate-setting" policy.
Most of the spending has targeted Tillis and GOP Sens. David Perdue of Georgia, Cory Gardner of Colorado and McSally of Arizona.
Physicians for Fair Coverage, yet another tax-exempt group that represents specialty physician companies including US Acute Care Solutions and Radiology Partners, is running similar ads and working on "grass-roots" state campaigns against the benchmark policy. A spokeswoman for the group, Megan Taylor, says its membership wants the billing problem resolved. "PFC supports legislation that protects patients from balance bills and addresses bad behavior because we value our relationships with health plans and have negotiated very productive arrangements, including value-based contracts," Taylor wrote in a statement.
Then there's the lobbying money at the federal level. According to the Center for Responsive Politics' latest 2019 tallies, the AHA has spent $10.2 million and the American Medical Association has spent $11.5 million. Only a portion of the money may be going toward balance billing.
BGR Group spent about $220,000 representing Physicians for Fair Coverage, which separately spent $145,000. The American College of Emergency Physicians has spent $1.2 million, American Society of Anesthesiologists has spent $500,000 and College of American Pathologists has spent nearly $770,000.
Amid the PR and policy battle, even lobbyists are divided about where the debate is going wrong.
"The fact that industry on both sides could scare Congress into inaction on an issue that is financially ruining Americans through no fault of their own is unconscionable," said one provider lobbyist, who wants a "split the baby" policy that "doesn't destabilize the relationship between providers and payers."
Another healthcare lobbyist complained that the Senate health committee early on "turned the hearing aids off" to provider groups.
"We just don't want rate regulation, and (Sen. Alexander) is headed in that direction, which frankly has nothing to do with the problem," that lobbyist said.
A third lobbyist for physicians posited that the thought of losing leverage to insurers has further ratcheted up tension for the doctors.
"When you do see somebody advocating for their sector and they're saying something that isn't favorable about the other side, you get defensive about it," the lobbyist said. "And it detracts from the common goal, which you forget—we've all basically agreed we want to protect patients and get them out of the middle."
It's unclear now exactly how the debate will move forward once Congress is back.
"That groups are trying to kill (the policy) entirely cuts against what they are saying publicly—which is that they agree this is a problem, that they only disagree on how to solve it," one Senate aide said.
Gremminger put it this way: "What we've seen (from industry) is, 'First, protect me financially. And to the extent we can then take patients out of the middle, that's great.' "