After months of stalemate in Congress, committee negotiations on legislation to address surprise medical bills are moving again in both the House and Senate. Bicameral negotiations are ongoing between leaders of the Senate health committee and the House Energy & Commerce Committee as other lawmakers in each chamber lobby to get their approaches incorporated into a compromise.
Senate health committee Chair Lamar Alexander (R-Tenn.) said he is optimistic that his negotiations with Senate health Ranking Democrat Patty Murray (Wash.), House Energy & Commerce Committee Chair Frank Pallone (D-N.J.) and Energy & Commerce Ranking Republican Greg Walden (Ore.) will be productive.
"What we are trying to do is see if we can make the House committee version and the Senate committee version consistent. So that may require some give on the Senate's part," Alexander said.
Progress on surprise billing legislation had stalled amidst a lobbying onslaught by providers, who want an outside arbiter to resolve disputes between providers and insurers. Both the Senate health committee and House Energy & Commerce Committee bills would use a typical insurer-negotiated rate as a benchmark for what insurers would pay for out-of-network treatment. The Energy & Commerce proposal also included a limited arbitration option for certain specialty cases.
But Walden said at a Nov. 15 White House event that Congress is "very close" to legislating on surprise billing.
If the Senate health and House Energy & Commerce committees reach a bipartisan, bicameral agreement, Alexander said he is optimistic congressional leadership will hold a vote on the legislation.
"At some point, people are going to turn around and look at each other and say, is impeachment all we can do? And what we hope to do is have this ready for them," Alexander said.
Though the Dec. 20 deadline to fund the government is fast approaching, several other House and Senate lawmakers are still maneuvering to make their voices heard in the negotiations. A government funding package could be a vehicle for moving surprise billing legislation.
The House Ways & Means Committee recently resumed bipartisan talks on surprise billing legislation after abandoning an approach that would have required federal agencies to develop a process for working out differences in out-of-network rates.
Rep. Lloyd Doggett (D-Texas), the Ways & Means health subcommittee chair, said he had not heard specifics on the committee's new direction, but said there is general agreement that the committee's prior approach to leave decisionmaking to regulators would not be viable.
"I think there is increasing recognition that without some type of cap, a set rate or not, the cost estimate out of [the Congressional Budget Office] will be so high that it cannot be approved," Doggett said.
The main issues still being discussed are how an insurer payment cap would be set and the mechanism for appealing payments if a party objects, Doggett said.
Ways & Means Committee Chair Richard Neal (D-Mass.) said he and Ways & Means Ranking Republican Kevin Brady (Texas) have agreed to general parameters for a surprise billing deal, but declined to elaborate.
"Let's put it this way, we are doing okay. The problem is around here is as quickly as these things come together they fall apart and you have to go back and re-patch them," Neal said.
Ways & Means Democratic spokeswoman Erin Hatch said committee Democrats hope to have a bill ready for markup sooner rather than later, but added that there is no firm timeline.
Comments by Brady in recent weeks evidenced the resumption of intra-committee surprise billing talks. On Nov. 13, Brady said there had been "no substantive talks" about surprise billing since House Democrats' impeachment inquiry into President Donald Trump began. A week later Brady had changed his tune.
"I would describe our talks with Chairman Neal as very constructive. I think we have made good progress toward a common surprise medical bill framework, and now our teams are finishing out the details on this," Brady said on Wednesday.
Brady also said he thinks having Ways & Means input on surprise billing negotiations would increase a future bill's likelihood of success.
"I think having the Ways & Means committee also weigh in on it with a bipartisan solution strengthens the probability that this becomes law and gets to the president's desk," Brady said.
Shawn Gremminger, senior director of federal relations at the consumer advocacy group Families USA, said he worries that throwing another proposal into the mix could hurt the chances of Congress coming to a compromise in time for a December appropriations package.
"I appreciate what Ways & Means is trying to do in ensuring best possible consumer protections, but I am concerned that it may doom the chances of finalizing something by Dec. 20. We strongly support getting something done by the end of the year," Gremminger said.
Disagreements on issues outside of healthcare could cause Congress to punt a government funding fight into 2020, but Gremminger said that if Congress is able to reach an agreement in December, he would hate to see surprise billing not included because lawmakers were still negotiating.
In the upper chamber, Senate health committee member Sen. Bill Cassidy (R-La.) said his staff has been meeting with Alexander's staff and pushing for an arbitration backstop for disputes between providers and insurers. The version of surprise billing legislation the Senate health committee passed did not include such a backstop.
Cassidy said he has been hearing "good things, but not definite good things" about arbitration's inclusion in compromise legislation.
"I don't know if they will eventually accept the safety valve, but we do think we are putting up guardrails to address their concerns that a safety valve might be abused," Cassidy said.
The White House wants Congress to address surprise medical bills, and Domestic Policy Council chief Joe Grogan said on Nov. 8 that he is in regular contact with lawmakers in the House and Senate.
"I do hope it can come together in the end," Grogan said. "It's an easy issue for the American people to understand and want to address."
