On Sunday, December 8th, the House Energy and Commerce (E&C) Committee and the Senate Health, Education, Labor and Pensions (HELP) Committee announced they reached a bipartisan, bicameral agreement on legislation to protect patients from unexpected out-of-network (OON) “surprise” medical bills.

Each Committee already approved its own bill earlier in the year. Those bills were similar to each other, but there were some important differences. The Committees have spent the last few months negotiating a compromise on the differences between the two versions. Sunday’s announcement means the two Committees have reached a compromise and will introduce new legislation in the coming days.

The agreement between the Committees is a large step forward in the process to pass legislation on surprise medical bills. However, political obstacles remain. Leadership of both chambers has yet to announce support for this agreement. The top Democrat on the Senate HELP Committee, Sen. Patty Murray (D-WA), is also not supporting the agreement at this time.

The Committees invited The Healthcare Billing Management Association (HBMA) to an exclusive stakeholder briefing on the agreement on Monday, December 9th. Below is a summary of the agreement based on information ADVOCATE has obtained from our membership in the HBMA. We still have many questions that will not be answered until the Committee releases official legislative text. The Committees have not provided a specific date for when they will release legislative text, but assured stakeholders that text will be released soon.

Key Provisions of Compromise:

  • Limiting Protections to Hospital Services: Similar to previous iterations of each Committee’s bill, the protections only apply to surprise bills for services performed in hospital settings. The agreement will not apply to the physician office setting, but it is reasonable to expect that Congress will pass additional legislation to expand the policy to other settings in the near future.


  • Limiting Patient Out of Pocket Costs: Patients will be limited to paying their in-network cost-sharing rate in surprise situations. Providers and facilities will not be able to balance bill patients for what their health plan does not cover in surprise situations. Providers also cannot balance bill patients for OON services unless the patient is given 72 hours advanced notice and a cost estimate and the patient consents to the OON care.


  • Rate Setting: Health plans would be required to reimburse OON providers at the median in-network rate (benchmarked to January 31, 2019) in surprise situations.


  • Independent Dispute Resolution: Either party would have the ability to trigger an independent dispute resolution (IDR) process if they disagree with the median in-network rate. The IDR process is binding, “baseball-style” arbitration. Each party will submit an offer and the arbiter will select one or the other based on a set of criteria described in the legislation. That criteria will include the median in-network rate, the provider’s specialty, the provider’s geographic location, extenuating circumstances such as patient complexity, and the market share of the plan and the provider.


  • IDR Threshold: Claims must exceed a $750 in-network payment threshold per-CPT code to qualify for IDR process. This is a lower threshold than the $1,250 threshold in the original E&C legislation. It does not appear that providers will have the ability to bundle similar claims to reach the threshold.


  • IDR Cooling Period: The agreement also adds a 90-day “cooling” period that was not in any previous iteration of an IDR process. Under the cooling period, a party cannot trigger arbitration against another party for the “same item or service” for 90 days. The available summaries do not define “same item or service.”


  • Timely Billing Requirement: The bill also includes a timely billing requirement. Providers will be required to submit claims to health plans within 20 calendar days after discharge or the date of visit. Health plans must return an adjudicated bill to the provider within 20 calendar days of receiving the claim. Providers must send a bill to patients within 20 calendar days of receiving an adjudicated bill from health plans. Patients must receive a bill within 60 calendar days after receiving care. Patients will not have to pay bills received after 60 days. Patients will have 35 days to pay their bill once it is received. An appeal of an adjudicated claim will “pause the clock” until the appeal is resolved, at which point the “clock” will resume. HHS will be required to issue regulations to account for extenuating circumstances such as global packages.


  • Deferral to State Law: The federal law will defer to states that have enacted surprise billing laws that are as robust as the federal law. It is not clear how the federal government will determine if a state law is adequate. The federal law will also apply in states that have not enacted laws and will apply to plans that states do not have the legal jurisdiction to regulate such as ERISA plans.


  • Identify the Plan Type: HBMA has advocated for Congress to add a requirement for health plans to identify the beneficiary’s plan-type (Commercial, ACA, ERISA, etc.) on the beneficiary’s plan card as well as in 835 and 270/271 electronic transactions. The agreement does not include such a requirement. HBMA and other stakeholders are continuing to ask the committees to include this requirement in the bill.

The Committees want to attach this legislation to a bill that extends federal funding beyond the current December 20th funding deadline. It is not yet clear if the Committees can complete their work and get the necessary political support in time to include the surprise billing policy in the government funding bill.

As always, ADVOCATE will keep you up to date on this and all issues impacting radiology as they become available.

Best regards,

Kirk Reinitz, CPA