Surprise Billing Bills, and Arkansas Rejection

House Committees Mark Up Surprise Billing Bills

On Tuesday and Wednesday, the House Education & Labor (E&L) and House Ways and Means Committee held a markup for their respective surprise billing proposals. To date, three separate surprise billing proposals have passed through three separate House committees, illustrating the pressure on Congress to end the practice of balance billing practices. The House E&L bill is similar to the bill passed by the Energy and Commerce Committee last year that favors benchmark pricing to end balance billing disputes with minimum thresholds for arbitration. Under the E&L bill, medical bills would need to be higher than $750, or $25,000 for air ambulance bills (while the Energy and Commerce bill does not address air ambulance) before they could be arbitrated. The Ways and Means measure would allow all billing disputes to be arbitrated, regardless of the price. In all three proposals, arbitrators would be instructed to “consider” median in-network rates. The Ways and Means version could result in more medical bills going to arbitration because it doesn’t include minimum thresholds or benchmarks for out-of-network services but does include a time-limited open negotiation period prior to arbitration.

All Congressional leaders involved in these measures have stated a wish to pass bipartisan legislation this Congress with the ideal path forward being to discuss all three options on the House floor. The agreed-upon legislation would be included within the extenders package set to be discussed before the May deadline.

Articles & Resources

Link to Energy and Commerce bill, HR 3630

Link to House Ways and Means bill, HR 5826

Link to House Education and Labor bill, HR 5800

Older article - "Pelosi Enters Fight" - Feb 04 - https://thehill.com/policy/healthcare/481287-pelosi-enters-fight-over-surprise-medical-bills

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Appeals Court Strikes CMS-Approved Arkansas Medicaid Demonstration

On Friday morning, a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled unanimously to affirm the district court’s decision finding the Trump Administration’s approval of Arkansas’ demonstration program was arbitrary and capricious. The panel included one Republican-appointed judge. Arkansas implemented work requirements to require certain non-disabled Medicaid recipients to meet work or similar requirements to maintain eligibility in the program; limited Medicaid’s standard retroactive coverage period to 30 days prior to application; and terminated an employer-sponsored coverage premium assistance program. Approximately 18,000 people (about 25% subject to the work requirement) lost Medicaid coverage in five months due to an inability to meet work requirements, failure to successfully report, or simple unawareness of the requirements. Citing case precedent, the court concluded, “While furnishing health care coverage and better health outcomes [the latter being the alternative objective pursued by the demonstration] may be connected goals, the text specifically addresses only coverage. 42 U.S.C. §1396-1.  The Supreme Court and this court have consistently reminded agencies that they are ‘bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.’” Further, the Court found HHS acted arbitrarily and capriciously by not considering the coverage losses in its approval: “While we have held that it is not arbitrary or capricious to prioritize one statutorily identified objective over another, it is an entirely different matter to prioritize non-statutory objectives to the exclusion of the statutory purpose.”

While the Administration will likely seek Supreme Court review for the 2020-21 term so long as President Trump wins reelection, in the short run, the decision will further jeopardize about 20 states’ work requirements demonstrations that have been approved or are pending.

Articles & Resources

Link to Gresham v. Azar decision

Arkansas' Medicaid work rule rejected by appeals court