Congress’ Efforts To End Surprise Medical Bills - The Latest From Washington

Arent Fox

Arent Fox

Lawmakers remain in negotiations among the three key committees in the House of Representatives: Energy & Commerce, Ways & Means, and Education & Labor, along with the Senate Committee on Health, Education, Labor and Pensions (HELP), about the best way to address surprise medical bills.


The issue continues to split Members of Congress by political party and by Congressional committee and instead hinges on home-state industries and interests: Members of Congress with large numbers of hospitals in their states/districts have thrown their support behind legislation from the House Ways & Means Committee that favors arbitration, while Members of Congress representing large health insurers have backed bills that favor benchmarked median rates from the House Energy & Commerce Committee and the Senate HELP Committee. The lack of clear political lines defining support for benchmarks or arbitration, hospitals or health care insurers, patients or providers has made it extremely difficult for Congressional leadership from both parties to track the positions of various Members – much less schedule a politicized vote that could fracture their respective caucuses during an election year. Congress has promised to pass legislation ending the problem of surprise medical bills for patients; however, the roadmap for achieving success remains filled with many obstacles.


Surprise medical bills can occur when patients receive emergency services at a facility, or from a provider, that is outside of their insurance network. They’re commonly called “surprise medical bills” because patients can receive these bills many weeks or months after the initial emergency facility visit. Often, these out-of-network services & providers are more expensive than in-network care, have higher out-of-pocket costs for patients, and aren’t covered by insurance benefits. The end result can leave patients with large, unexpected “balance bills,” due to the provider or facility billing more than the patient’s insurance plan covers.

After a slew of news articles in major outlets and online journals began highlighting the problem of surprise medical bills for out-of-network services and air ambulances bills, the issue of fixing surprise medical bills rose to the top of the Congressional agenda in 2019. Last summer, the Senate HELP Committee, led by Sens. Lamar Alexander (R-TN) and Patty Murray (D-WA), passed the Lower Health Care Costs Act in an effort to address the issue. The Lower Health Care Costs Act includes a number of provisions to keep costs for out-of-network services in line. The bill bars health insurers from charging enrollees higher copays/coinsurance for services at out-of-network emergency facilities. It ensures that patients pay the in-network rate for any out-of-network services provided by specialists including anesthesiologists, pathologists, and radiologists at in-network emergency facilities. These specialties are emphasized because they have the highest rates of surprise medical bills, along with emergency medicine. It also requires out-of-network notification & consent standards once a patient is stabilized in an emergency facility. Finally, the bill requires health insurers to pay the in-network median rate for any services when they can’t bill patients for the balance and defines the in-network median rate as the median contracted rate under the plan for similar service in the same geographic area. Passage of the Lower Health Care Costs Act in the HELP Committee sparked fierce lobbying and a multi-million advertising campaign among physician staffing firms that were concerned.

The House Energy & Commerce Committee, led by Reps. Frank Pallone (D-NJ) and Greg Walden (R-OR), followed shortly after by passing the No Surprises Act, which also bars health insurers from charging enrollees higher copays/coinsurance for services at out-of-network emergency facilities and ensures that patients pay the in-network rate for any out-of-network services. Similar to the Lower Health Care Costs Act, the No Surprises Act requires health insurers to pay the median in-network contracted rate for a given service in the same geographic area. However, the Energy & Commerce legislation differs from the HELP Committee package by allowing third-party arbitration for bills where the in-network median rate exceeds $1,250.

Throughout the vast majority of 2019, the Senate HELP Committee and House Energy & Commerce Committee were the only Congressional committees to take action on surprise medical bills, and even announced a bicameral agreement among three of the four committee leaders in early December. That bicameral agreement combined many provisions of the two bills including requiring out-of-network notification requirements from providers/emergency facilities and limiting patient costs to the in-network cost-sharing amount for services, including services from the specialties mentioned previously. The House-Senate package also established an in-network median contracted rate for similar services. However, the House-Senate legislation distinguished itself by allowing third-party arbitration for bills where the in-network median rate exceeds $750. Lastly, under the compromise package, following any arbitration decision, the party that initiated the proceedings cannot take the opposite party to future arbitration for the same item/service for 90 days.

However, without the support of HELP Committee Ranking Member, Sen. Patty Murray (D-WA), and very little backing from Congressional leadership, including Sen. Chuck Schumer (D-NY) who remains very close to hospitals in New York, the bicameral agreement failed to be included in the FY20 spending package that passed in December.

Since December, two additional House Committees have introduced legislation to address surprise medical billing: the Ways & Means Committee, led by Reps. Richard Neal (D-MA) and Kevin Brady (R-TX), who favor arbitration, and the Education & Labor Committee, led by Reps. Bobby Scott (D-V) and Virginia Foxx (R-NC), who favor a benchmarked median rate. Both bills provided opportunities for each committee’s leadership to exercise their limited jurisdiction over the issue of surprise medical billing, and neither of these bills will come to the floor of the House for a vote in their current forms. Now that each committee with jurisdiction over surprise medical billing has advanced legislation, the four committee leaders are negotiating among themselves to find a path forward that could lead to a compromise package that solves the issue for consumers.

Current Status

Congressional observers are largely playing wait and see. Congress has given itself a self-imposed deadline of May 22nd to address a broader package of public health programs, which could also be used to address surprise medical bills if Congress can find agreement and legislative text is ready. However, House Speaker Nancy Pelosi hasn’t weighed in with a preferred approach among the three different House bills that are currently pending and instead has left the discussions to be sorted out among the three committee chairmen for the time being. Additionally, Sen. Chuck Schumer hasn’t come forward with a preferred legislation solution to address surprise medical bills.

Finally, Rep. Steny Hoyer, the second-ranking House Democrat, recently sent out a note stating that work continues on surprise medical billing and that “if a bill is ready, I’ll bring it to the floor this work period.” The current work period in the House of Representatives ends on Friday, May 13th; however, with Congress focused on addressing the spread of the coronavirus, no final compromise among the four committees, or a preferred solution is chosen by Congressional leadership in either chamber, Congress is likely to wait until May 22nd to make a major push at addressing surprise medical bills.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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