Three key lawmakers in the U.S. Senate and House of Representatives on Sunday announced a bipartisan deal on legislation to address surprise billing including an arbitration process, though one Democratic senator directly involved in the negotiations was not included in a press release announcing the deal.
Lawmakers said they hope the legislation can be included in an end-of-the-year spending deal.
Senate health committee Chair Lamar Alexander (R-Tenn.), House Energy & Commerce Chair Frank Pallone (D-N.J.), and Energy & Commerce Ranking Republican Greg Walden (Ore.) announced the agreement.
Under the surprise billing provision, providers would be paid for out-of-network care based on a benchmark of the median in-network rate in the area. The threshold for providers to appeal charges to an outside arbitrator would be $750, and they would not be allowed to bundle charges. The factors an arbiter would be directed to weigh are still unclear.
The legislation is similar to a bill that passed the House Energy & Commerce Committee in July, but that bill had a lower arbitration threshold of $1,250. The bill outline was first reported by The New York Times.
Air ambulances are also included in the surprise billing provision, and carriers would be allowed to appeal bills that meet a threshold of $25,000 to an outside arbitrator. Moody's Investor Service warned in late November that the air ambulance industry's business model could be threatened if legislation similar to a provision in the Senate health committee's bill passed.
Sens. Bill Cassidy (R-La.), Maggie Hassan (D-N.H.) and Michael Bennet (D-Colo.), who advocated for a provider-friendly surprise billing fix, said they were glad a "simple arbitration safety valve" was included in the legislation, but indicated that discussions may be ongoing.
"As our discussions continue around the final details, we are encouraged that we're one step closer to giving patients these vital protections," Cassidy, Hassan and Bennet said in a statement.
Previously, hospitals have been mixed in their support of arbitration. The American Hospital Association testified before a congressional panel in May that any legislation should have "baseball-style" arbitration and allow the request for arbitration with the provider or health insurer, not the patient.
Many important details of the legislation remain unclear, including the threshold for the arbitration process and whether payment benchmarks would be indexed to inflation.
The White House has signaled it would be open to supporting surprise billing legislation including an arbitration backstop.
However, Senate health committee Ranking Democrat Patty Murray (Wash.) was not included in a press release announcing the agreement. A spokesperson for Murray said she is still working with Democrats who have concerns about the legislation.
"She didn't want to sign onto a press release until those were worked through," the spokesperson said.
The Senate health committee's version of surprise billing legislation did not include an arbitration backstop, but the House Energy & Commerce bill did.
Pallone, Alexander and Walden said their surprise billing fix would save the government nearly $20 billion. The deal also includes five years of funding for community health centers, a bill that would increase the purchasing age for tobacco to 21, and measures to increase transparency and competition in the prescription drug market. The lawmakers did not specify whether reforms to hospital and insurer contracts were included in the deal.
It is unclear whether leadership is supportive of the deal.
Senate Majority Leader Mitch McConnell (R-Ky.) said he was glad to see progress on solutions to the teen vaping crisis, including his and Sen. Tim Kaine's (D-Va.) bill to raise the tobacco purchasing age, but did not take a position on the surprise billing provision.
"I look forward to reviewing the details on this and the other policies included in the package announced today," McConnell said in a statement.
A spokesperson for House Speaker Nancy Pelosi (D-Calif.) did not respond to an inquiry by press time.