Days before a vote on the massive $2 trillion bill to respond to the coronavirus outbreak, a group of lawmakers and advocates thought they were on the precipice of a long-sought victory: curbing the practice known as “surprise” medical billing.
Surprise billing happens when patients, often in cases of emergency, are treated by hospitals or doctors outside their insurance network—and end up on the hook for the difference between what their care providers charge and what their insurer can cover. A bipartisan coalition in Congress had finally emerged last year to fix what had become a widely-recognized flaw in the U.S. health-care system.
When that push fell apart last year, the sweeping bill known as the CARES Act became a viable vehicle—a chance not only to shield COVID-19 victims from surprise bills, but anyone else, too. As the legislation came together over the course of days, Democratic and Republican proponents thought they had enough buy-in to make a compromise work—the White House was even pushing for it.
But the day before the vote, word spread among lawmakers and lobbyists: Despite an active push, surprise billing reform language had not made it into the final version of the CARES Act. While the bill’s $150 billion relief fund for health-care providers comes with strings—hospitals and physicians can’t issue surprise bills if they accept the cash—there was no outright provision to counter the practice.
The story of how that happened, according to interviews with congressional staff, health-care sector lobbyists, and outside experts, is a stark example of how, even in extraordinary times, one of Washington’s oldest, most ordinary rules still applies: It’s easier to not do something than to do something—especially when powerful interests have a stake in the outcome. In this case, those interests are hospitals, certain physicians groups, and the private equity firms with a major stake in those sectors. All are fiercely opposed to surprise medical billing changes.
With hospitals and their doctors on the front lines of the coronavirus crisis, their advocates on Capitol Hill have more sway than ever. In crafting the relief bill, they used it; those involved in the process recall phones ringing off the hook from lobbyists for the health-care providers, and email inboxes filled with proposals to get officials to back off on the surprise billing push.
“Surprise billing fixes have been pretty universally opposed by hospitals and physicians’ groups,” said Loren Adler, who studies health policy and economics at the Brookings Institution. “Obviously, they are a lot more politically popular right now, somewhat undeniably. From a political perspective, it’s harder to do anything hospitals don't sign off on right now.”
The staunchest proponents of billing reform are wary of picking a public fight with these groups. “But that should not distract us from remembering things we need to do to protect patients,” said Shawn Gremminger of the Pacific Business Group on Health, which represents large private and public entities that provide employee health care. “If you’re not doing that, you’re missing something.”
And to these advocates, the CARES Act’s measures to curb surprise billing for COVID-19 patients is a positive development but hurts in another way: it lays bare an acknowledgement of the problem—but doesn’t do anything about it for patients hit with surprise bills for any other malady.
“In some ways,” said Gremminger, “it’s absurd.”
The disease’s outbreak has created ripe conditions for balance billing, which happens when a patient has to make up the shortfall between what an out-of-network hospital or doctor charges and what the patient’s insurer is able to cover. These frequently occur in emergency situations; if a critical patient is rushed to the nearest hospital, for example, it may or may not be in their insurance network. Even if a patient goes to an in-network hospital, they could be treated by contracted specialists who are in a different network—and they can issue balance bills of their own.
That risk is much higher during the COVID-19 outbreak, said Jack Hoadley, professor emeritus of health policy at Georgetown University. “You might go to a hospital within your network, but they've brought in doctors who don’t normally practice there to help cover in the emergency,” he told The Daily Beast. “All of those circumstances increase the possibility that an out-of-network doctor ends up treating you.”
Depending on the doctors they saw and the care they received, patients could be put on the hook for a few hundred dollars to even tens of thousands of dollars, in severe cases.
It was the proliferation of these eye-popping bills over the past few years that has fueled the growth of a bipartisan movement on Capitol Hill in favor of reining in the practice. But it’s become a rare highly charged issue that splits along factional lines, not partisan ones, as Congress turned into an arena for corporate, labor, and insurer interests to do battle with health-care provider interests and their backers in the financial industry.
Advocates for the two sides fought fiercely last year, as Capitol Hill came close to a surprise medical billing deal championed by the House Energy and Commerce Committee and the Senate Health, Education, Labor, and Pensions Committee. In the summer and fall, private equity interests—which have a major stake in providing health care—mobilized to blunt the momentum of that bipartisan plan, which they believed would favor insurers at their expense.
A dark money group called Doctor Patient Unity—later revealed to be funded by private equity firms—spent tens of millions of dollars on an ad blitz attacking surprise billing reforms, employing alarming visuals like darkened emergency rooms to suggest the bill would seriously curtail access to health care.
By December, prospects for a vote on the bipartisan deal had wilted. After the House Ways and Means Committee released a one-page summary of its own, different surprise billing proposal, congressional leadership punted on advancing any legislation on the subject until 2020—prompting serious bitterness in many corners of the Capitol.
Before the COVID-19 outbreak, Capitol Hill was not expecting consideration of surprise billing until a lame duck session in November, when it would be considered along with legislation to fund community health centers. As the disease spread in the U.S. and Congress began responding, however, talks quickly re-started about including a comprehensive surprise billing fix in the legislation that ultimately became the CARES Act.
According to those familiar with the situation, there was interest from several corners in a deal, including the White House. But proponents found powerful headwinds working against them: a quiet, swift and expertly-conducted lobbying campaign.
If patients are now on the precipice of facing serious financial burden because of COVID-19, at the time of negotiation on the CARES bill, hospitals were already getting slammed and were set to be totally overwhelmed with coronavirus-stricken patients. Hospitals were pressing lawmakers to provide them a lifeline, which was ultimately offered in the form of a $150 billion relief fund.
As they pushed for additional funds, hospitals and other care providers also kept a wary eye on the surprise billing push, which was actively underway as Senate Majority Leader Mitch McConnell (R-KY) convened working groups to craft the CARES Act. According to sources, the issue was considered very much in play to be included as part of that bill.
Concerned that their rivals on the other side of the fight could also gain a foothold in the crisis, the industry began relaying their concerns to Capitol Hill. One such example: The influential Association of American Medical Colleges, according to a source familiar, signaled through a consultant that they were open to making trade-offs—like a temporary funding of community health centers—in order to kill the surprise billing push.
The alarm bells clearly echoed through Capitol Hill, as lawmakers privately stepped up to oppose including surprise billing measures as the CARES Act came together, blunting proponents’ momentum. “There was some intense lobbying by the providers to leave this out,” recalled a source familiar with the negotiations, who added that the kitchen sink was thrown out in talks to get everyone to yes on a surprise billing fix. “There were a million things, throughout the last year, the 48-72 hours leading up to the CARES Act, that we considered.”
To the lobbyists pushing for reform, the fingerprints were clear. “Private equity acted and activated their surrogates,” said James Gelfand, senior vice president of health policy at ERIC, which helps large companies manage their employee benefits. “It all took place in 72 hours… it was not a long thing. The bill came together very, very quickly. When surprise billing was not included in the initial draft, the conversation wasn’t 100 percent over.”
There was hope that the provisions would get added in, but two days later, word spread among lawmakers, aides, and lobbyists that it wasn’t going to happen. Ultimately, claimed Gelfand, a “shoe leather lobbying campaign” from the industry overwhelmed the effort. Representatives from provider groups, including the AAMC, did not provide specific comment on their lobbying efforts.
“It was made very clear that [the CARES Act] was all about both economic support and getting money in the hands of providers,” Gremminger told The Daily Beast. “And policies outside of those were not of particular interest at that point, including surprise billing.”
The sheer speed with which the nearly 1,000-page bill had to be crafted was a major headwind for proponents of reform. Their issue became an easy candidate for the chopping block because it was less about getting emergency money out the door and was a relatively harder lift.
None of the key congressional leaders in either chamber seemed eager to do battle on a thorny topic while under immense pressure to get out $2 trillion in emergency relief for individuals, the health care sector, and every sector of the U.S. economy. Last year’s squabble among the committees, meanwhile, fueled the lingering perception among the leading negotiators that the issue couldn’t be easily dealt with. “The issue has been that there are still disagreements between the committees of jurisdiction on how to address surprise billing,” a senior Democratic aide told The Daily Beast.
With lawmakers and the White House already at work on a fourth iteration of COVID-19 relief, some proponents of reforming surprise medical billing are hopeful that it will finally be the opportunity to pass broader reforms that would affect not just coronavirus victims but anyone who could be vulnerable to a surprise bill.
Others, however, are already getting the same ominous signals as the last time around—namely, that congressional leadership doesn’t see the issue as relevant to its coronavirus response effort. On a recent call with health care industry members, McConnell’s policy team indicated openness to addressing the issue, according to a source familiar with the call, but not in the context of the COVID-19 response. A spokesperson for McConnell declined to comment on the call.
That apparent conclusion has left advocates scratching their heads as to why a widely-recognized flaw in the health-care system—one made even starker by the ongoing pandemic—would not be considered relevant in responding to the crisis.
“It seems unfair not to make people whole in the middle of a public health crisis,” said Adler, the Brookings expert. “It also seems like you’ve got a lot of leverage, when you throw a lot of money at physicians and hospitals, to stop some of the worst practices there.”