Hospitals and doctors on Wednesday scored a slew of amendments that could boost their pay even within the benchmark cap proposed in the House Energy and Commerce Committee legislation to ban surprise medical bills.
These amendments, a testimony to the provider community's influence on Capitol Hill, include the option for doctors to appeal to an independent arbiter to collect additional money for certain out-of-network treatment, as well as a potential increase for out-of-network care at pricier facilities.
Lobbying pressure that was already intense has only mounted since May, when the House Energy and Commerce Committee first released its proposal to cap pay for out-of-network treatment through a benchmark rate tied to median insurance rates. Hospitals, doctors and insurers have paid lip service for months to a federal solution even as they lobbied hard for a proposal that would suit their interests.
In an eleventh-hour deal late Tuesday, Reps. Raul Ruiz (D-Calif.) and Larry Bucshon (R-Ind.) secured an amendment to give doctors and hospitals recourse in special cases if they don't like the benchmark rate, authorizing an arbiter to step in and resolve disputes with insurers as long as the median in-network pay amount is higher than $1,250 and it relates to complex cases.
Committee Chair Frank Pallone (D-N.J.) and ranking member Greg Walden (R-Ore.) both expressed their reservations about including an arbitration option, but ultimately threw their support behind it since the amendment would offer an appeals process only in extenuating circumstances.
Pallone made it clear arbiters wouldn't be able to look to provider charges as a reference point when resolving payment disputes.
"Provider charges are often double or triple Medicare rates," Pallone said. "If Congress sends a signal to providers that provider charges are acceptable, it would put upward pressure on insurance premiums."
Specialty physician groups and hospitals were pushing for a federal policy that mirrors a law in New York, where the payment backstop is charges rather than negotiated insurance rates.
The American Hospital Association isn't taking a public stance on the Ruiz amendment, a source familiar with discussions said, given that member hospitals are divided over arbitration. AHA representatives did not comment about its position.
Rep. Michael Burgess (R-Texas), physician and ranking member of the committee's health panel, said the surprise billing proposal couldn't advance without an arbitration backstop.
"Really there was no way to move forward with this without a mechanism for an independent dispute resolution," he said.
But not all lawmakers felt that way, with Rep. Jan Schakowsky (D-Ill.) expressing concern that arbitration could undermine the legislation's attempt to address the "skyrocketing costs" of healthcare.
While specialty physician groups celebrated the win, the committee lost some core support for the underlying bill, including that of the ERISA Industry Committee, which represents large employer-sponsored plans.
Insurers also came out swinging against the amendment.
"It's vital that lawmakers crafting legislation maintain the benchmark protections and reject establishment of a cumbersome arbitration process that will raise costs for everyone," Justine Handelman, senior vice president of the Blue Cross and Blue Shield Association, said in a statement.
The advocacy group Families USA, a leading voice on the surprise billing issue, said it still supports the underlying legislation to ban surprise bills but opposed the Ruiz amendment "because it adds an unnecessary level of complexity and uncertainty for consumers and undermines the intent of the underlying legislation."
Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy, blasted the amendment as "yet another compromise to provider and private equity interests, at the expense of patients, employers and taxpayers."
"Arbitration serves no public policy purpose, and only acts to kick the can, limit transparency and add more administrative costs to the system," he said. However, he hopes the limited scope of the arbitration option could mitigate the "adverse consequences from its conclusion."
Specialty physician groups and the American Medical Association applauded the addition, although the AMA maintained criticism of "elements of the legislation."
Federation of American Hospitals CEO Chip Kahn also said his group still doesn't like "the precedent embedded in the bill that empowers the federal government to set private rates."
Meanwhile, committee lawmakers secured additional changes on behalf of providers.
The panel adopted an amendment by Rep. Doris Matsui (D-Calif.) to allow adjustment to the payment benchmark for care at specialty care sites where treatment is expensive.
Lawmakers also supported a provision by Rep. Lisa Blunt Rochester (D-Del.) that would require a Government Accountability Office study to monitor rural and underserved communities to make sure the ban on surprise medical bills hasn't driven out their doctors. She noted some "apprehensiveness" about the underlying bill.
Rep. Ann McLane Kuster (D-N.H.) secured an amendment to tighten network adequacy rules for insurers, citing complaints from doctors that the House proposal could hurt their negotiating leverage with insurers.
The proposal is now cleared for a House floor vote. The Senate health committee has already approved its own legislative package that includes a ban on surprise bills, with some senators also trying to secure an arbitration option.
It's unclear when the Senate floor vote could happen, given that some senators are disputing certain provisions. But HELP Committee Chair Lamar Alexander (R-Tenn.) said he still hopes it will happen before the August recess.
