U.S. Senate Out-of-Network Payment Discussion Draft Circulated to Stakeholders

On September 17, Senator Bill Cassidy (R- LA), as part of the Senate health care price transparency working group, released to stakeholders and others a discussion draft of legislation that seeks to protect patients from surprise medical bills. The draft bill sets payments to out-of-network physicians providing non-emergency care to payments provided for in state law, median in-network payments or 125% of average allowed amounts. This payment mechanism language is concerning to ASA because it provides significant deference to insurers and the anticipation of their willingness to engage in good faith negotiations with physicians. ASA and its state components have long advocated for out-of-network payments based on charged amounts.

With the short time remaining in the 2018 Senate legislative session, it is unlikely that this discussion draft will progress in its current form.  

At present, the draft bill would among other things:

• Prohibit balance billing for emergency services by an out-of-network provider. The difference between the out-of-network provider’s charges and the enrollee’s cost-sharing requirements would be determined by:
• State law;
• The average amount for the service -- median in-network amount for the service provided by a provider in the same/similar specialty and provided in the same geographical area; or
•  The usual, customary, and reasonable rate for the service which is defined as equal to 125 percent of the average allowed amount for all private health plans and health insurance issuers for the service provided by a provider in the same/similar specialty and provided in the same geographical area as reported in a statistically significant benchmarking database maintained by a nonprofit organization that is not affiliated with any plan or issuer.
• Require specified notifications to enrollees that received emergency services from a nonparticipating health care provider or facility who require additional health care services after they have been stabilized that are not emergency services.
• Prohibit balance billing for non-emergent care at in-network facilities by out-of-network providers. Any difference billed by such provider between their charges and the enrollee’s cost-sharing requirements must be paid by the insurance company in an amount and manner determined by:
  • State law;
  • The average amount of the service;
  • The usual customary and reasonable rate.
• Require the Secretary of Health and Human Services to conduct a study on the impacts of this legislation if signed into law.

ASA leadership, advocacy staff and the Ad Hoc Committee on Out-of-Network Payment are reviewing the discussion draft and look forward to continuing to discuss this issue with Senator Cassidy, his staff and other Senate stakeholders.

Read a copy of the discussion draft

Read a press release from Senator Bennet on the legislation