Details of surprise billing proposals emerge in Congress
Following the release of "surprise billing" legislation by the chairman and ranking member of the House Committee on Energy and Commerce and separately by a Senate working group led by Sen. Bill Cassidy, MD (R-LA), additional proposals were unveiled last week to address the issue of patients receiving bills from out-of-network physicians whom they did not have the opportunity to choose and whose bills their insurers will not pay.
On May 23, the bipartisan leadership of the Senate Committee on Health, Education, Labor and Pensions, Chairman Lamar Alexander (R-TN) and Ranking Member Patty Murray (D-WA) unveiled comprehensive legislation to address health care costs across as range of areas, including prescription drug prices, increased transparency, public health and information exchange. Three policy options to address surprise medical bills attracted the most attention. The first two largely reflect the policies previously suggested by the Energy and Commerce and Cassidy proposals, which would ban out-of-network physicians, under certain circumstances such as emergency care, from billing patients at more than the plan's in-network cost-sharing amounts and base insurer payments on the median in-network rate or an amount determined by an independent dispute resolution process that also takes into account the median in-network amount.
A third option put forth by the committee leadership would require that any in-network facility guarantee to patients and plans that every physician providing care in the facility would also be considered in-network either by requiring the physicians to join the same networks as the facilities or requiring them to bill through the facility rather than sending separate bills to the patients. If no agreement on a payment amount can be reached within 30 days, the plan would pay the median in-network amount for that geographic area. Obviously, each of these proposals provides minimal incentives for plans to offer fair contracts to physicians since out-of-network payments will be based in-network amounts. The AMA is analyzing each of these proposals and will respond within timelines laid out by the bills' authors.
Also on May 23, a bipartisan group of House members, led by Rep. Raul Ruiz, MD (D-CA) and Rep. Phil Roe, MD (R-TN), outlined legislation that, like other proposals, would protect patients from the consequences of their plan's failure to contract with an adequate number of physicians by limiting cost sharing to in-network amounts while at the same time providing for a fair independent dispute resolution model based on the successful New York law to resolve differences between plans and physicians. Though legislative language has not yet been released, the AMA and a number of state medical associations and national physician specialty organizations expressed support for the principles embodied in the proposal (PDF) and offered support for the members' ongoing efforts. The AMA will remain engaged with Dr. Ruiz, Dr. Roe and the other sponsors of the efforts as legislative language is finalized.
Finally, on May 22, eleven members of the House GOP Doctors Caucus sent a letter to U.S. Department of Health and Human Services (HHS) Secretary Alex Azar and other administration officials expressing support for efforts to protect patients from unanticipated out-of-network costs and encouraged them to look closely at successful models such as those in New York and Maryland. The letter also encouraged the administration to reconsider earlier negative comments about arbitration and offered to work with them in finding a simple, straightforward solution that protects patients and addresses the root causes of surprise medical bills while remaining committed to an open, free-market system.
HHS Office of Civil Rights to revise current sex non-discrimination policies
The HHS Office of Civil Rights (OCR) has issued a notice of proposed rulemaking revising regulations that implement Section 1557 of the Affordable Care Act (ACA). Section 1557 makes it unlawful for any health care provider who receives funding from the federal government to refuse to treat an individual—or to otherwise discriminate against the individual—based on race, color, national origin, sex, age or disability. It builds upon longstanding nondiscrimination laws and provides some new civil rights protections.
OCR's new proposal removes protections for sexual orientation, gender identity and sex stereotypes from Section 1557 regulations and multiple other HHS programs, including Medicaid, ACA plan marketing and benefit design, and Qualified Health Plans under the ACA and Medicare's Programs for All-inclusive Care of the Elderly (PACE). The proposed regulation also removes protections against discrimination for women who have terminated pregnancies. These protections assist some of the populations that have been most vulnerable to discrimination, such as lesbian, gay, bisexual and transgender individuals and those suffering from mental illness, including substance use disorders and help provide those populations equal access to health care and health coverage.
OCR states that the revisions are necessary based on a decision by a federal court that said that the current protections are "likely" unlawful. However, OCR and multiple other federal agencies have long interpreted "discrimination on the basis of sex" to extend to claims of discrimination based on gender identity or sex stereotypes and accepted such complaints for investigation. The Supreme Court and multiple lower courts have made similar interpretations.
In multiple (PDF) letters (PDF) to the administration, the AMA has reiterated that it opposes any discrimination based on an individual's sex, sexual orientation, gender identity, race, religion, disability, ethnic origin, national origin or age. AMA policy also supports public and private health insurance coverage for treatment of gender dysphoria as recommended by the patient's physician, and denounces discrimination against women who have terminated a pregnancy.
Section 1557 does not force physicians to violate their medical judgment; rather, covered entities, including insurers, must apply the same neutral, nondiscriminatory criteria used for other conditions when the coverage determination is related to gender transition. The AMA will submit thorough comments on the proposed rule.
Trump Administration finalizes Part D and Medicare Advantage drug pricing proposals
On May 16, the Trump Administration finalized several proposals aimed at decreasing drug costs in Part D plans and Medicare Advantage. The earlier proposed rule included a number of suggested policy changes to the six protected classes, as well as expansion of utilization management tools, such as step therapy and prior authorization.
The AMA was disappointed to see the administration finalize plans to allow step therapy for drugs within five of the six protected classes, as well as policy changes to allow step therapy for Part B physician-administered drugs. The administration declined to finalize other proposals which would have potentially limited access to protected class drugs, such as proposals to remove drugs from Part D formularies in cases where new formulations of the drug were offered and where the price of a drug rises faster than inflation. The AMA continues to be concerned that certain changes aimed at reducing drug costs would have a detrimental impact on patient access to these important treatments. These concerns were reflected in AMA comments (PDF) on the initial proposal.
The AMA was also pleased to see the Centers for Medicare & Medicaid Services (CMS) finalize a proposal requiring Part D plans to make available Real Time Pharmacy Benefit tools within electronic health records. The AMA has made calls for patient benefit and formulary information to be made available to physicians at the point of prescribing to assist physician and patients in choosing the best, most cost-effective treatments for their particular conditions. The AMA will continue working with the administration to lower the price of prescription drugs and maintain access to critical treatments for patients.
