White House Gives Congress Until Dec. 31 to Ban Surprise Billing

UPDATED 09/30/2020 An executive order on a number of healthcare issues includes a new timeline for a surprise billing solution and further advancements in hospital price transparency.

Signed by President Trump late last week, “Executive Order on An America-First Healthcare Plan” directs Congress to achieve a legislative solution to surprise billing by December 31, 2020.

If policymakers fail to pass a legislative solution by the deadline, the order then directs HHS to take administrative action to prohibit providers from sending bills for out-of-pocket expenses that a patient could not have reasonably predicted.

“For years, patients have been shocked to receive unexpected bills for thousands of dollars in medical services they never agreed to,” President Trump said in remarks on the signing of the executive order. “The first America First Healthcare Plan bans this deeply unfair practice.  We will end surprise medical billing. The days of ripping off American patients are over.”

Banning surprise billing is part of the plan’s initiatives aimed at reducing healthcare costs. The President also seeks to lower costs by advancing hospital price transparency.

The executive order builds on the White House’s previous price transparency reforms, including a new requirement that hospitals publish pricing information, including payer-specific rates, for at least 300 shoppable services.

In the executive order, the President directs HHS to update the Medicare.gov Hospital Compare website within 180 days to include whether a hospital complies with the requirement.

HHS will also publish on the website whether hospitals provided patients with a receipt upon discharge and how often the hospital sues patients over unpaid medical bills.

Hospitals have largely opposed the original price transparency reform, arguing that it violates their First Amendment rights and could lead to less competition and higher prices for patients. A federal judge, however, recently dismissed their legal case challenging the rule.

Since then, hospitals have weighed whether they should comply with the price transparency requirements, which will go into effect on January 1, 2021. Some industry experts have said hospitals may opt to take the fine, which will could cost less than the resources hospitals would need to comply with the rule.

The executive order highlights the President’s commitment to enforcing the hospital price transparency final rule, but it leaves a prohibition on surprise billing still up in the air.

The Trump Administration has homed in on surprise medical bills as part of its efforts to improve access to affordable care for Americans and top political leaders have reportedly been working on a far-reaching proposal to ban the practice altogether.

But the administration has faced staunch pushback from healthcare providers and health plans, which are on opposing sides. Providers have generally favored a federal arbitration process like the one proposed in the Scott-Foxx “Ban Surprise Billing Act,” while payers have backed legislative solutions that impose a benchmark rate for out-of-network care.

Hospitals have also asked policymakers to hold off on a surprise billing solution until after the pandemic.

The White House did require providers to certify, as a condition of receiving federal COVID-19 relief payments, that they would not collect out-of-pocket expenses from a patient for treatment related to the virus if the amount was greater than what the patient would have had to pay an in-network provider.

The executive order, however, punts a more comprehensive solution to Congress, which has not been able to pass a solution for over a year.

“Those special interest groups need to sort it out and figure out how that would work,” HHS Secretary Alex Azar said in a press call last Thursday.

Other efforts to lower healthcare costs in the President’s healthcare plan include expanding access to affordable medicines, including accelerating approvals of new generic and biosimilar drugs, and building upon existing actions to reduce healthcare fraud, waste, and abuse.

In addition to lower costs, the other pillars of the President’s healthcare plan are increasing choice and providing better care through a variety of healthcare insurance and drug pricing reforms, most notably a promise to protect patients with pre-existing conditions and prescription drug importation from Canada.

UPDATE: The Physicians Advocacy Institute issued a statement about the Trump Administration's executive order. 

“Physicians believe Congress and the Administration must come to a solution on surprise medical bills that frees patients from unanticipated financial responsibility. The best approach will treat physicians and insurers on a level playing field and use the private market and a fair process to resolve disputes," Kelly Kenney, CEO of the group, said in the statement emailed to RevCycleIntelligence.

“Some proposals in Congress rely on insurers’ internal claims payment data to establish payment rates when there is no network contract instead of relying on market-based negotiations to resolve billing disputes," Kenney added. "Putting insurers in control will jeopardize physicians’ ability to remain viable, as insurers will unilaterally slash payments to all physicians, sometimes below the cost of medical services. These policies will ultimately undermine patients’ access to important medical services, especially in an emergency."