House Education Committee Issues Report on Ban Surprise Billing Act
Excerpts of the report follow (with changes to the law omitted, and available at https://www.congress.gov/congressional-report/116th-congress/house-report/615/1?s=2&r=3)
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Purpose and Summary
The Ban Surprise Billing Act is comprehensive, bipartisan legislation that makes several major reforms to protect consumers from surprise medical bills and improve transparency in health coverage. Surprise medical bills arise when a consumer covered by a health plan is unexpectedly treated by an out-of-network provider and is required to pay the difference between what the plan pays and the provider's charge. The issue of surprise bills, which can often expose a consumer to thousands of dollars of unforeseen medical costs, is widespread. In 2017, one in six Americans covered by an employer-sponsored plan received a surprise medical bill for out-of-network care despite having health insurance./1/ One in ten elective hospital admissions and one in five admissions from emergency departments result in surprise bills./2/
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First, the Ban Surprise Billing Act protects participants, beneficiaries, and enrollees in group health plans and coverage in the group or individual markets from surprise medical bills.
To ensure that consumers are held harmless under the terms of their plan or coverage, it limits cost-sharing to the innetwork rate: (1) in emergency situations, whenever a participant, beneficiary, or enrollee receives out-of-network emergency care without having a choice of provider; and (2) in non-emergency settings, when out-of-network care from certain ancillary providers is chosen without the individual's knowledge. It also extends these protections to patients who receive services from air ambulance providers.
Second, the Ban Surprise Billing Act includes strong prohibitions on balance billing by providers. Balance billing occurs when a patient is held financially liable for the difference between a provider's billed charge and the allowed amount under a health plan. The legislation prohibits out-ofnetwork providers or facilities from balance billing patients in all emergency situations and in non-emergency situations by ancillary providers. It limits balance billing for elective out-of-network care at in-network facilities to situations in which a patient has a choice of an in-network provider at the facility and if the out-of-network provider complies with strong notice-and-consent requirements. Violations of these prohibitions on balance billing by providers will be enforced primarily by the states, who retain authority to regulate insurance coverage, and secondarily by the Secretary of
Third, in order to resolve payment disputes between providers and health plans, the Ban Surprise Billing Act employs a hybrid approach that relies upon both a market-based benchmark payment and an Independent Dispute Resolution (IDR) process. For claims under
Importantly, guardrails--including a prohibition on consideration of provider billed charges by IDR entities--are put into effect to reduce costs for patients and prevent inflationary effects on health care costs.
Fourth, the Ban Surprise Billing Act takes additional steps to improve transparency in health coverage. For example, it requires group health plans and issuers offering coverage in the group or individual markets to establish business processes to verify and update provider directories and protect consumers from using inaccurate or out-of-date directory information. It improves the availability of information regarding cost-sharing on insurance cards. It requires brokers and consultants to disclose to group health plan sponsors and individual market consumers whether they have received any direct or indirect compensation for referrals. The Ban Surprise Billing Act also requires the Secretary of Labor to develop a standardized form to facilitate group health plans' information reporting to state All-Payer Claims Databases. These and other reforms will meaningfully improve the quality and affordability of care while increasing transparency in coverage and empowering patients to make informed decisions about their care.
Finally, the bill is drafted in a legally sound manner that will ensure its requirements are enforceable and fully protect participants, beneficiaries, and enrollees in group health plans and coverage in the group and individual markets from surprise medical bills. All provisions of the Ban Surprise Billing Act that are intended to apply to plans covered by the Employee Retirement Income Security Act of 1974 (ERISA) are drafted as explicit amendments to ERISA, resolving any question as to their applicability and enforceability by the Secretary of Labor.
Committee Action
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At the markup, the Committee considered the following amendments to H.R. 5800:
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The amendment was defeated by a vote of 15 Yeas and 30 Nays.
Committee Views
INTRODUCTION
As the Committee of jurisdiction over employer-sponsored health coverage, a central goal in developing and advancing the Ban Surprise Billing Act is to ensure that reforms apply throughout the health care system--not only in the individual market, but also to the approximately 157 million Americans who are covered through a workplace health plan./3/ In addition, while meaningfully improving the affordability of care for millions, the bill was carefully crafted to strike a balance between the various concerns of stakeholders--including providers, hospitals, labor unions, health insurers, and employers--many of whom have divergent views on how to effectively address the issue of surprise billing.
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While striking a careful balance between the concerns of stakeholders, the Ban Surprise Billing Act puts consumers and patients first, and has been commended by dozens of advocacy groups. A coalition of twenty-three patient organizations, including the
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/4/Press Release,
/5/Letter from No Surprises: People Against Surprise Medical Bills to the Honorable
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BACKGROUND ON SURPRISE MEDICAL BILLS
Surprise medical bills occur when consumers covered by health insurance are subject to higher-than-expected out-ofpocket costs when they receive care from a provider who is outside their plan's network. These costs can include costsharing at out-of-network rates under their health plan as well as balance bills from a provider requiring the consumer to pay the difference between the provider's out-of-network charge and the amount, if any, that the plan will pay for the item or service. The rise of managed care plans, such as Health Maintenance Organizations (HMOs), Preferred Provider Organizations (PPOs), and Point of Service (POS) plans, in which the insurer contracts with a network of doctors, hospitals, or other health care providers, has placed an increasing number of consumers at risk of receiving surprise bills./6/
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/6/Over the past three decades, the number of individuals enrolled in a conventional health insurance arrangement through their employer has declined from 73 percent of workers to approximately ten percent.
By 2018, approximately 49 percent of individuals with employersponsored coverage were enrolled in a PPO, 16 percent in an HMO, and six percent in a POS plan.
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Situations in which patients have little or no control over whether a provider is in- or out-of-network can arise in both emergency and non-emergency situations. Patients in emergency settings often receive care at a hospital that is not in their plan's network or are transported by an out-of-network ambulance. Non-emergency situations can also lead to surprise bills when patients receive care at a facility that is innetwork but unknowingly receive services by out-of-network providers. Among the most common non-emergency services that result in surprise out-of-network bills are pathology, radiology, anesthesiology, and other ancillary health services for which the patient did not have an opportunity to choose the provider or was unaware the care was being provided at all./7/
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THE PREVALENCE AND FINANCIAL IMPACT OF SURPRISE MEDICAL BILLS Surprise medical bills are widespread in private health coverage, impacting consumers in both the group and individual markets. In 2017, one in six Americans covered by an employersponsored plan received a surprise medical bill for out-ofnetwork care despite having health insurance./8/ One in ten elective hospital admissions and one in five admissions to emergency departments result in surprise bills./9/ Services particularly likely to be out-of-network include ambulance transportation, including more than half of all emergency ground ambulance transports/10/ and nearly 70 percent of air ambulance transports./11/
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The financial liability imposed on patients by surprise medical bills can be staggering. A series of articles published by Vox in 2019 drew substantial public attention to the devastating stories of patients who have received surprise bills; among the most shocking was a spinal surgery patient who received a bill of
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/16/According to one survey, 45 percent of individuals, the majority of whom are covered by health insurance, report that they have delayed or avoided receiving health care due to high out-of-pocket costs.
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Surprise medical bills have devastating financial impacts on Americans and on their ability to afford needed health care.
Consumers, who are subject to these bills through no fault of their own, should not be liable for unexpected and unreasonable out-of-pocket costs. There is substantial bipartisan interest in reducing the burden of surprise medical bills on consumers.
In addition, there has been a growing sentiment among health care stakeholders that surprise billing must be addressed at the federal level, although opinions differ regarding the appropriate approach to do so.
SURPRISE BILLING REPRESENTS A MARKET FAILURE
Economists generally regard the practice of surprise medical billing as arising from a failure in the health care market, which causes providers--particularly in certain specialties--to have little or no incentive to contract to join a health plan's network due to a number of unique circumstances. These providers face highly inelastic demands for their services because patients lack the ability to meaningfully choose or refuse care, such as during an emergency or when ancillary services are provided of which a patient may not even be aware. They also often hold substantial market power, resulting in one or only very few providers available to provide critical items or services in a geographic area. These circumstances enable some providers to charge amounts for their services that exceed the marginal cost of producing those services and resulting in compensation far above what is needed to sustain their practice.
The presence of this market failure in certain provider specialties is strongly supported by evidence reflecting the highly inflated payment rates for these services. For example, in comparison to the amount paid by Medicare for similar items or services, the median billed charge for emergency medicine is 465 percent of the Medicare rate; similar disparities are present for pathology (343 percent), diagnostic radiology (402 percent), and anesthesiology (551 percent)./17/ These inflated payment rates are, in turn, reflected in the cost of in-network care. While the average in-network physician is paid at 128 percent of Medicare rates, in-network payments for emergency medicine (306 percent), radiology (200 percent), and anesthesiology (344 percent) far exceed Medicare rates./18/ These costs are directly felt through higher out-of-pocket expenses and exorbitant surprise bills for out-of-network care, as well as by all consumers who share in rising overall health care costs through higher premiums.
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/17/Examining Surprise Billing: Protecting Patients from Financial Pain Before the Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. & Labor, 116th Cong. (2019) (written testimony of
/18/Young Testimony at 9.
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The financial opportunity from inflated out-of-network prices has made health care an attractive market for private equity firms, hedge funds, and venture capital firms./19/ For example, private equity deals related to health care more than doubled between 2008 and 2018,/20/ and private equity firms now own the two largest physician staffing companies, which together account for 30 percent of the physician-staffing market./21/ Research on one large private equity-owned firm showed that when it entered a hospital network, out-of-network billing rates increased by more than 81 percentage points./22/
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EXISTING STATE LAWS AND THE NEED FOR FEDERAL ACTION A number of states have taken significant steps to address surprise medical bills through consumer protection laws that shield patients from surprise billing in the individual, small group, and fully-insured group markets. In total, about half of the states in the
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Moreover, states are unable to protect consumers fully in employer-sponsored plans from surprise bills because ERISA prohibits states from regulating self-insured group health plans, which cover more than 60 percent of people enrolled in employer-sponsored health plans./24/ ERISA contains a broad preemption clause providing that federal law "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan."/25/ States are therefore unable to apply their surprise medical bill laws to millions of their residents, and as a result, a federal legislative response is necessary.
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/25/29 U.S.C. Sec. 1144.
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THE CENTRAL ROLE OF ERISA IN ENSURING SURPRISE BILLING PROTECTIONS APPLY
The Patient Protection and Affordable Care Act (ACA)/26/ made a number of major changes to the private health insurance market through amendments to Part A of title XXVII of the Public Health Service Act (PHSA)./27/ These provisions, insofar as they impact group health plans and health insurance issuers providing health insurance coverage in connection with group health plans, are incorporated by reference into ERISA through Section 715 of ERISA./28/
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/26/42 U.S.C. Sec. 18001 et seq.
/27/42 U.S.C. Sec. Sec. 300gg et seq.
/28/29 U.S.C Sec. 1185d. Note that a similar provision incorporates Part A of title XXVII of the Public Health Service Act into the Internal Revenue Code. 26 U.S.C. Sec. 9815.
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However, serious questions exist as to whether amendments to Part A of title XXVII of the PHSA enacted subsequent to the ACA are automatically incorporated into ERISA. A recent decision by the
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/29/139 S. Ct. 759 (2019).
/30/Id. at 769.
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Although the statute at issue in Jam was the International Organizations Immunities Act, the principle of statutory interpretation articulated by the Court is directly applicable to title XXVII of the PHSA and the incorporation by reference provision of ERISA. Because Section 715 of ERISA specifically references "the provisions of part A of title XXVII of the Public Health Service Act," the Court's reasoning in Jam suggests that ERISA only incorporates the law in Part A of title XXVII of the PHSA as it stood on the date of enactment of the ACA on
Therefore, the Ban Surprise Billing Act is drafted in this manner in order to protect consumers comprehensively and unequivocally from surprise bills.
COMPREHENSIVE PROTECTIONS ARE NEEDED TO PROTECT CONSUMERS FULLY There is widespread agreement that any surprise billing solution must comprehensively protect consumers by "taking the consumer out of the middle" of surprise billing disputes.
Since a large share of American consumers have very little financial cushion--as noted above, about 40 percent could not afford an unexpected
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/34/Young Testimony at 2.
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At the
/35/Examining Surprise Billing: Protecting Patients from Financial Pain, Hearing Before the Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. & Labor, 116th Cong. (2019) (written testimony of
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In addition, witnesses and Members noted that measures to improve transparency in health coverage could serve as important complements to surprise billing legislation.
Specifically, improvements to provider directories--described as "notoriously inaccurate" by Dr.
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/39/Examining Surprise Billing: Protecting Patients from Financial Pain, Hearing Before the Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. & Labor, 116th Cong 194-95 (response to Committee Member questions by
/40/Examining Surprise Billing: Protecting Patients from Financial Pain, Hearing Before the Subcomm. on Health, Employment, Labor, and Pensions of the H. Comm. on Educ. & Labor, 116th Cong. (2019) 202 (response to Committee Member questions by
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RESOLVING PAYMENT DISPUTES BETWEEN PROVIDERS AND HEALTH PLANS A key element of any solution to address surprise billing comprehensively is the payment rate, which is the amount that payers must remit to providers for out-of-network items and services. Two payment rate options have emerged as the predominant contenders to correct the market failure associated with surprise billing: (1) the benchmark rate model, and (2) the IDR process, also referred to as arbitration. Under a benchmark rate model, payments to providers for out-of-network items and services default to a pre-determined amount, such as a percentage of the Medicare rate (typically 125 percent of Medicare) or the median contracted (in-network) rate in the geographic area where the service took place./41/ In contrast, the IDR process is mediated by a third-party arbitrator, and legislation typically specifies guidance or criteria for the arbitrator to consider. A common approach is to use "baseballstyle" arbitration, under which each side submits a price, and the arbitrator chooses one, with both sides bound by the decision./42/
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/41/When the benchmark is set at a negotiated rate such as the median in-network rate, it is typically linked to previously agreedupon rates (such as 2019 rates) and linked to inflation thereafter, which prevents providers from influencing their own pay. Examples of recent federal legislation that rely exclusively on benchmark rates are the Lower Health Care Costs Act (S. 1895), which passed the
/42/An example of federal legislation that relies on the arbitration approach is the Consumer Protections Against Surprise Medical Bills Act of 2020 (H.R. 5826) which was reported by the
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Both approaches "take the consumer out of the middle" of surprise billing disputes. Both also offer the opportunity to tether payment rates for surprise out-of-network bills directly to market-based prices, curbing cost growth relative to the status quo. For example, the commonly considered median innetwork benchmark rate is a market-based price; it reflects negotiations between providers and insurers in a local health care market. An IDR process may also partially reflect marketbased prices if the arbitrator is instructed under the legislation to consider a market-derived price such as the median in-network rate, although the IDR process entails some additional administrative costs. However, some IDR process proposals would have the arbitrator consider non-market-based rates such as providers' billed charges,/43/ which may drive up consumer costs./44/
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/43/For example, under
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arbitration_not_the_answer_to_fix_surprise_medical_billing_111042.html.
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Of the two options, evidence indicates that benchmark rates will generally slow the rapid growth of health care costs, both by lowering costs in the near term relative to the status quo and by slowing the rate of health care cost inflation in future years./45/ Benchmark rates achieve this primarily by removing providers' incentives and ability to charge very high out-ofnetwork prices,/46/ thus reducing providers' bargaining power to negotiate or demand higher prices of health plans,/47/ the costs of which insurers typically pass on to consumers./48/ Slower growth in health care costs will, in turn, reduce growth in consumers' premiums and government spending on health care.
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/45/For example, the
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/47/
/48/See
Furthermore, benchmarking obviates the additional administrative costs insurers face under an arbitration model which, if high enough, could "undermine the effectiveness of the policy by leading insurers to simply accede to providers' demands rather than pursue arbitration," causing insurers to pass increased costs on to consumers, again leading to health care cost inflation.
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The IDR process, on the other hand, has the potential advantage of allowing payment rates "to vary more for specific circumstances and potentially adjust more easily over time."/49/ This added flexibility may be particularly merited in high-stakes and complex situations in which a market-based benchmark such as the median in-network rate is less likely to reflect or be monetarily close to the cost of furnishing the item or service.
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There is a wide range of opinions among various stakeholders about which approach to payment rates is optimal.
To bridge this divide, the Ban Surprise Billing Act incorporates a hybrid approach that will ensure that an efficient, market-based payment benchmark is employed, while providing for a noninflationary IDR mechanism for cases in which claims of at least
CONCLUSION
H.R. 5800, the Ban Surprise Billing Act, protects consumers from the financial devastation of surprise medical billing through a targeted and balanced approach that carefully weighs the needs of all stakeholders with divergent views on the issue. Most importantly, the legislation provides robust protections from surprise medical bills for workers and families across the country.
Section-by-Section Analysis
Sec. 1. Short title
This section states that the Act may be cited as the Ban Surprise Billing Act.
Sec. 2. Preventing surprise medical bills
This section establishes consumer protections in the group and individual markets to protect participants, beneficiaries, and enrollees from surprise medical bills. It limits costsharing owed under a health plan or coverage to the in-network rate whenever a participant, beneficiary, or enrollee receives out-of-network emergency care, including air ambulance services and non-emergency care provided by out-of-network ancillary providers. It also requires that the costs of out-of-network care received in a situation where a surprise bill would have occurred in either emergency or non-emergency settings be counted toward the in-network deductible or out-of-pocket limit under the plan or coverage.
This section provides that the recognized amount under the plan or coverage for certain out-of-network items or services will be determined based on a market-based benchmark of the median contracted rate for similar services in the geographic area. The methodology for determining the benchmark will be established by the Secretaries of
This section also provides that in determining the allowed amount under the plan or coverage, state laws for determining the payment amount may remain in effect with respect to plans and coverage within the jurisdiction of states, including amounts determined under an All-Payer Model Agreement under Section 1115A of the Social Security Act. In cases in which no applicable state law is in effect, the allowed amount will be the median of the in-network rate recognized by the plan or issuer for a similar item or service provided in the same geographic region.
Sec. 3. Preventing certain cases of balance billing This section prohibits out-of-network facilities and providers, including air ambulance providers, from engaging in balance billing of a participant, beneficiary, or enrollee in a group or individual health plan or coverage. In emergency situations, providers are prohibited from holding a participant, beneficiary, or enrollee liable for an amount greater than the cost-sharing owed under the plan or coverage.
In non-emergency situations, ancillary providers are prohibited from holding a participant, beneficiary, or enrollee liable for an amount greater than the cost-sharing owed under the plan or coverage. This section further specifies that such ancillary services include emergency medicine, anesthesiology, pathology, radiology, neonatology, and certain diagnostic services. In addition, in cases in which no in-network provider can furnish the item or service at the facility, such out-of-network services will be treated as ancillary services.
In cases in which elective out-of-network care is sought, this section requires that out-of-network providers and facilities provide notice to a participant, beneficiary, or enrollee of their network status and a good faith estimate of charges that may be applied for the out-of-network care. In order for the item or service to be treated as out-of-network, this information must be provided at the time an appointment is scheduled and the consent of the patient must be obtained at least 72 hours in advance of when the items or services are furnished.
This section also provides for state enforcement under the Act of provider requirements and the prohibition on balance billing. In cases in which states fail to implement the requirements and do not substantially enforce the prohibitions, this section provides that the Secretary of
Sec. 4. Independent dispute resolution
This section requires the Secretaries of
This section authorizes certified IDR entities to consider several factors in determining payment amounts, including the median contracted rate for a similar item or service furnished in the same geographic area, the level of training and experience of the provider, and extenuating circumstances such as the complexity of the specific case or the acuity of the patient. It prohibits IDR entities from considering the billed charges of the provider for the item or service.
Sec. 5. Advisory committee on ground ambulance and patient billing This section requires the Secretaries of
Sec. 6. Improving provider directories
This section requires group health plans and issuers offering coverage in the group or individual markets to establish business processes to verify and update provider directories and to respond to inquiries with respect to the network status of a provider within one business day of a request. It limits cost-sharing to the in-network rate when a participant, beneficiary, or enrollee relied in good faith on out-of-date provider directories under the plan or coverage.
Sec. 7. Improving transparency in health coverage This section requires brokers and consultants to disclose to group health plan sponsors and consumers enrolled in coverage in the individual market whether they have received any direct or indirect compensation for referrals.
This section also requires the Secretary of Labor to develop a standardized form to allow group health plans and issuers to report information to state All-Payer Claims Databases.
Sec. 8. Access to cost-sharing information
This section requires providers, group health plans, and issuers offering coverage in the group or individual markets to provide to a participant, beneficiary, or enrollee a good faith estimate of cost-sharing owed for a health care service within two business days of a request.
Sec. 9. Transparency regarding in-network and out-of-network deductibles and out-of-pocket limitations
This section requires group health plans and issuers offering coverage in the group or individual markets to include on insurance identification cards the amount of the in-network and out-of-network deductibles and out-of-pocket limitations under the plan or coverage.
Explanation of Amendments
The amendments, including the amendment in the nature of a substitute, are explained in the descriptive portions of this report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional Accountability Act, Pub. L. No. 104-1, H.R. 5800, as amended, does not apply to terms and conditions of employment or to access to public services or accommodations within the legislative branch.
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandates Reform Act, Pub. L. No. 104 4), the Committee adopts as its own the estimate of and statement regarding federal mandates in H.R. 5800, as amended, prepared by the Director of the
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of the
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
Hearings
Pursuant to section 103(i) of
Ms.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1) of rule X of the Rules of the
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
H.R. 5800, THE BAN SURPRISE BILLING ACT, AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON EDUCATION AND LABOR ON
Table omitted: https://www.congress.gov/congressional-report/116th-congress/house-report/615/1?s=2&r=3
H.R. 5800 would establish patient protections from surprise medical billing, and in certain circumstances would require insurers to reimburse out-of-network providers on the basis of the median payment rate for in-network care. The bill also would establish a process for health care providers and insurers to settle disputes over out-of-network bills greater than
CBO and JCT expect that under the bill, in facilities where surprise bills are likely, the average of payment rates for both in- and out-of-network care would move toward the median in-network rate, which tends to be lower than average rates. CBO and JCT estimate that in most affected markets in most years, lower payments to some providers would reduce premiums by roughly 1 percent. Lower costs for health insurance would reduce federal deficits because the federal government subsidizes most private insurance through tax preferences for employment-based coverage and through the health insurance marketplaces established under the Affordable Care Act.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the
However, clause 3(d)(2)(B) of that rule provides that this requirement does not apply when the committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the
Pursuant to clause 3(d)(1) of rule XIII, the Committee adopts as its own the cost estimate prepared by the Director of the
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