New surprise billing legislation from the House Ways & Means Committee is expected to leave out a benchmark payment mechanism that has proved a nonstarter for hospitals and specialty physician groups, according to sources familiar with the draft legislation.
Ways & Means Chair Richard Neal (D-Mass.) said Wednesday that he expects his committee's bill to be released by Friday, ahead of a Feb. 12 target markup date.
Patients would be protected from balance billing under the draft legislation, and if a provider and insurer cannot agree on the remaining payment for certain medical bills, they will enter a negotiation period, said sources familiar with the draft legislation. If they remain at an impasse, the parties could then go to a third-party, baseball-style arbitration process where the loser pays the administrative cost.
Ways & Means ranking member Kevin Brady (R-Texas) said the arbitration process would not have particular ceilings or floors for an arbitration award. The exact criteria the arbitrator could consider remain unclear, but a source familiar with the draft legislation said the bill will likely ban the arbitrator from considering billed charges or usual and customary charges and require the arbitrator to consider the median in-network payment rate.
"At the end of the day, we want an arbitration system that people don't really want to use," Brady said.
Neal said the final legislative text was not finished as of Wednesday morning. The committee had not received a savings estimate from the Congressional Budget Office as of Wednesday afternoon, he said.
A third House committee with jurisdiction over surprise medical billing has yet to weigh in with its own proposal. Education & Labor Chair Bobby Scott (D-Va.) said Wednesday that he expects to release bill text ahead of a target markup date of Feb. 11.
"We're trying to make it bipartisan, and the opposition is bipartisan too, which is unusual," Scott said.
Senate health committee Chair Lamar Alexander (R-Tenn.) said he and ranking member Patty Murray (D-Wash.) are working with the House committees and that his goal is to have a consensus bill that his committee and all three House committees agree on. Compromise legislation between Alexander, Murray and leaders of the House Energy & Commerce Committee fizzled at the end of 2019.
"We'll see what they work out among themselves," Alexander said Wednesday.
Lawmakers are working toward a deadline of May 22, when funding for several Medicare and Medicaid programs expires.