Why Feelings Are Mixed on the New Surprise Billing Rule

The administration’s latest interim final rule to implement the No Surprises Act dropped on September 30.  Here’s a look at the various reactions from stakeholders and why they are mixed.

What does it say?  The rule outlines a baseball-style, independent dispute resolution (IDR) process for settling payment disputes between out-of-network providers and commercial insurance plans.  Before the IDR process can begin, both parties involved must enter into a 30-day negotiation period to determine a payment rate.  If these negotiations fail, either party can initiate the IDR process. 

Next, both parties submit their proposed payment rate with supporting documentation to a certified IDR entity, who then issues a binding determination by selecting one of the party’s proposed rates.  When making a determination on which rate to select, the IDR entity must “begin with the presumption” that the most appropriate rate is the median of contracted rates for a specific service in the same geographic region.

  • Why? According to the rule, emphasizing the median in-network rate will help ensure that IDR outcomes are predictable and that stakeholders are not incentivized to overuse the IDR process.

In addition to the median-in network rate, other factors IDR entities may consider include the level of training, experience, and quality and outcomes measurements of the provider or facility that is furnished.

Insurers’ reactions have been favorable overallAmerica’s Health Insurance Plans said the focus on the median in-network rate “is the right approach” to encourage all stakeholders to work together and negotiate in good faith.  And the ERISA Industry Committee said the IDR process will reinforce the intention of the No Surprises Act.” 

But hospitals aren’t so happy.  The Federation of American Hospitals said the rule “misreads Congressional intent” on establishing a “fair and balanced” IDR process, while the American Hospital Association said the rule “unfairly favors insurers to the detriment of hospitals” and other providers. 

Reactions from lawmakers are mixed, too.  Like hospital stakeholders, comments from members of Congress have focused on the rule’s prioritization of median in-network rates in the IDR process.  Ways and Means Committee Chair Richard Neal (D-MA) and Ranking Member Kevin Brady (R-TX) said in an October 5 letter to the administration that the rule’s bias towards a median rate is not consistent with the law passed by Congress, which requires IDR entities to consider a range of factors when determining the appropriate rate. 

However, House Education and Labor Committee Ranking Member Virginia Foxx (R-NC) commented that the rule is “consistent with congressional intent.” Both the Ways and Means Committee and the Education and Labor Committee played key roles in drafting the No Surprises Act. 

When the No Surprises Act passed late last year, it was considered a win for hospitals, who favored settling out-of-network payment disputes with an IDR process.  In contrast, private health plans were advocating benchmark rates based on the median in-network rate as a solution.  By prioritizing median in-network rates in the IDR process, could the administration be attempting to balance the concerns of all health care stakeholders? 

What’s next: The administration will issue a rule later this year to implement the pharmacy and prescription drug reporting requirements of the No Surprises Act.  Despite a 60-day public comment period, the rule is final, and stakeholders will be required to comply with all of its provisions beginning January 1, 2022.  In the meantime, Reps. Neal and Brady have requested additional written justification from key administration officials on how the latest rule complies with the No Surprises Act, and stakeholders will continue to engage with the administration on upcoming rules.   

Despite Reintroduction, Medicare for All, Medicare-X Proposals Face Limited Odds

With control of the White House and both chambers of Congress, Democrats are newly emboldened to expand access to health care coverage.  A group of progressives in the House are making another attempt at Medicare for All, while moderates in the House and Senate want to expand coverage via a public option.  However, lack of Republican support for either proposal means both are likely doomed.

Medicare for All

On March 17, Reps. Pramila Jayapal (D-WA) and Debbie Dingell (D-MI) introduced the Medicare for All Act of 2021 (H.R. 1976).  The bill has so far attracted 109 co-sponsors, indicating the highest-ever level support in Congress for a national health insurance program.  While a Medicare for All bill has never advanced out of a congressional committee, advocates for single-payer feel the COVID-19 pandemic has laid bare the inefficiencies of the current health care system and made their case even stronger.  In a press release, Rep. Jayapal touted Medicare for All as a solution for the millions of Americans who lost employer-sponsored coverage because of the pandemic.    

In addition to being a total non-starter with Republicans, Medicare for All faces two major obstacles.  One is resistance from health care stakeholders, who have long thrown cold water on single-payer proposals.  The Partnership for America’s Health Care Future, a coalition of insurer and provider organizations, issued a recent statement saying Medicare for All is unaffordable and would lead to lower quality.  Additionally, the US Chamber of Commerce said in press release that Medicare for All would reduce access to providers and hospitals.

The second major obstacle comes from within the Democratic party itself.  President Biden has clearly stated his preference for expanding access to coverage through a public health insurance option, one that moderate and centrist members of the party share.  While Biden has gradually moved leftward over the course of his political career, it is extremely unlikely he would champion a health care proposal that remains divisive among members of his own party. 

Medicare X

Closer to the President’s ideological preferences for expanding coverage is the Medicare X Choice Act of 2021 (S. 386/H.R. 1227).  First introduced by Sens. Michael Bennet (D-CO) and Tim Kaine (D-VA) in 2017, this proposal would allow all Americans to purchase a public health insurance plan based on the Medicare program that would reimburse providers at the same rate Medicare currently does and allows patients to access providers that accept Medicare.  Supporters of Medicare X tout it as a more realistic proposal to achieve universal coverage that would be less disruptive to the health care system.  Additionally, a January 2020 poll from the Kaiser Family Foundation found a public option-based proposal is more favorable to a greater number of Democrats and Independents than Medicare for All.

The fact that Medicare X/a public option enjoys higher favorability than Medicare for All does not necessarily improve its odds of passage.  Medicare X is similarly unpopular with Republicans and given the party’s razor-thin control of the Senate, Democrats would likely have to use budget reconciliation to advance any kind of public option proposal.  While reconciliation was used to pass the Affordable Care Act (ACA) in 2010, it remains unclear if a proposal like Medicare X would meet the strict budgetary criteria required to be considered under budget reconciliation.  Furthermore, Congress is limited to the number of times it can use budget reconciliation in any given year, and Democratic leadership have yet to make any prognostications about what proposals it could consider under budget reconciliation in the future. 

Implications

While Medicare for All and Medicare X are unlikely to become law anytime soon, a key implication of both proposals is their potential to hasten divisions between progressive and moderate Democrats.  Since the start of the Biden Administration, both wings of the party have largely set aside their differences to advance key components of the President’s agenda, including cabinet nominations and a sweeping $1.9 trillion COVID-19 relief package.  While the House, and some argue the Democratic Party, have moved more to the left – it remains clear that moderate Democrats in the Senate maintain a high level of power over the fate of any legislation in the upper chamber.  Disagreements over health care proposals have the potential to disrupt broader legislative goals from the White House, such as immigration, infrastructure, or tax reform.