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The Health 202: Doctors are gaining the edge in fight over surprise medical billing



By Paige Winfield Cunningham and Paulina Firozi

Doctors may prevail over insurers in the effort to halt surprise medical bills. Here’s why: They have a lot of sympathy from members of Congress, many of whom are physicians themselves.

But the whole effort is threatened by intense, behind-the-scenes lobbying by doctor and insurer groups, which are bickering over what the solution should look like with an eye toward protecting their own bottom lines.

“I think it’s fair to say that action on surprise medical billing looks quite a bit less certain than it did just a few months back. That doesn’t mean the odds are zero,” said Ben Ippolito, a health-care economist at the conservative think tank American Enterprise Institute. “Surprise billing seemed like as sure of a shot as we had for a bipartisan piece of legislation.”

Passing bipartisan surprise billing legislation is a top priority for the Trump administration and Congress, which showed enthusiasm earlier this year for tackling the exorbitant medical bills patients receive when they get care from a doctor or hospital outside their insurance plan’s network. Several House and Senate committees have passed surprise billing legislation and there’s talk of including it in whatever drug pricing bill might take shape by year’s end.

Just about everyone agrees surprise medical bills are terrible for patients. They result from two main scenarios: when a patient has to get emergency care from an out-of-network hospital or when they visit an in-network hospital but are seen by an out-of-network doctor. Patients have been left with tens and hundreds of thousands of dollars in medical bills, even though they’re insured.

The legislative fight is over how to pay for the bills patients will no longer be on the hook for -- and how they should be calculated.

The insurer trade group America’s Health Insurance Plans and multiple patient advocates want an approach called “benchmarking,” where payments are pegged to an existing set of rates for in-network doctors.

But doctors hate that approach. They know that pegging payments to in-network rates, which are decidedly lower than out-of-network prices, would probably translate to a major pay cut for them. So they’ve been characterizing the benchmarking approach as “price fixing" and they're gaining some traction from the bloc of 19 physicians and dentists currently in the House.

The American Medical Association and the American Hospital Association, two powerful lobbies in Washington, fiercely oppose benchmarking. The AMA wants to settle these “surprise” bills using baseball-style arbitration, where insurers and providers would propose amounts and an independent third party would determine a “fair” price. The AHA has called for a process where the two parties can settle disputes without resorting to benchmarked rates.

“They won’t admit it, but they understand they’re getting overpaid,” said Chris Condeluci, a health-care policy lawyer and former Republican counsel to the Senate Finance Committee. “They feel going to a benchmark, that overpayment will be reduced by a significant percentage.”

Doctors have another argument, too — that benchmarking gives insurers too much leverage. Insurers would have less incentive to include doctors in their networks because they’d be assured of lower payment rates regardless of whether the doctor was in-network or not, so the doctors argue.

Two doctors in the House — Reps. Phil Roe (R-Tenn.) and Raul Ruiz (D-Calif.) — are pushing for a bill allowing arbitration, and it has the support of most of their fellow physicians in Congress. There are 19 physicians and dentists in the House, many of them in key roles with health-care jurisdiction. Sen. Bill Cassidy (R-La.), also a doctor, has introduced a similar bill instituting an arbitration system.

“What are [insurers] afraid of, a negotiation?” Roe said last week. “What they want is price fixing. I think you have a free negotiation between two parties.”

Rep. Buddy Carter (R-Ga.), who is a pharmacist and a member of the House GOP Doctors Caucus, said he favors a split approach such as in a bill passed by the House Energy and Commerce Committee allowing benchmarking for smaller surprise bills, but using arbitration for larger bills, such as those over $1,250.

Going with only a benchmarking approach “would give the insurers the upper hand,” Carter said.

“I wouldn’t be in favor of that,” he said.

The House Education and Labor Committee has also been trying to pass surprise billing legislation, but abruptly canceled a planned vote last week amid lawmaker differences. Roe and Ruiz, who are members of that committee, are trying to convince the committee leaders to take up their legislation.

Chairman Bobby Scott (D-Va.) said he is hoping to move ahead with a bill in October, after Congress returns from a two-week recess. He said he is open to arbitration, but said the details are crucial.

“The instruction to the arbitrator can make the difference,” Scott said.

As if tensions weren’t already high enough, dark-money groups that own physician staffing companies are pouring millions of dollars into ads to oppose the benchmarking approach. They’ve raised the ire of leaders of the House Energy and Commerce Committee, which is now investigating them.

One ad from a group called Doctor Patient Unity shows paramedics rushing a patient to a hospital to find it empty and in the dark. “Imagine if the care we needed wasn’t there when we needed it most?” the ad asks. “Government rate-setting could mean closed hospitals.”

That ad from Doctor Patient Unity:

The group has targeted members of Congress including Sens. Thom Tillis (R-N.C.), David Perdue (R-Ga.), Jeanne Shaheen (D-N.H.) and Senate Majority Leader Mitch McConnell (R-Ky.), according to a report from

Rep. Frederica Wilson (D-Fla.), who is on the House Education and Labor committee, said she’s also taking heat from Doctor Patient Unity. She said she has been receiving fliers three times a week that feature her photo, claiming she is “setting rates for doctors” and wants to “close all the hospitals,” and asking voters to call her office line.

“They are just crazy,” she said.

To insurers, the dark money groups just further prove that health providers aren’t ultimately willing to quash the practice of writing absurdly high medical bills.

“Article after article in the past couple of weeks make it clear that the provider groups don’t want to see a bill passed because it’s going to hurt their private equity firm's bottom line,” said Adam Beck, AHIP’s vice president of employer health policy. “We need to see something done because this is a crisis in American health care.”

Insurers have patient advocates on their side. Families USA sent an August letter urging House leaders to imitate the benchmarking provisions in a bill passed by the Senate Health, Education, Labor and Pensions Committee. In a policy brief, Community Catalyst said the HELP bill “appears to be the favorable approach to partially curb provider monopoly power, thus lowering health care costs overall.”

Some provider groups have pitched what they’re calling a compromise, where insurers would pay providers an initial rate but either party could trigger arbitration if they were unhappy with that rate. Doctors with provider company US Acute Care Solutions told reporters at a briefing earlier this month they’ve lobbied Congress on this approach.

“We don’t think there’s a perfect bill out there right now. But that framework of a fair initial payment with a fair dispute resolution process — we think that’s the right blend and we hope legislatively we can get there,” said Anthony Cirillo, an emergency physician and USACS’s director of government affairs.

Assuming Congress is able to eventually arrive at a final bill (and that’s no guarantee), here’s the key question: Will it get watered down so much that doctors are still able to issue unacceptably high surprise medical bills?

“I’m increasingly worried that the solution, the eventual legislation, will do less to solve the underlying problem in lieu of largely rewarding the providers involved in this kind of behavior,” Ippolito said. “Is the benchmarking strategy going to win, or will providers?”

And there’s concern lobbying efforts might halt legislative efforts altogether. That’s what the dark money groups seem to hope for, based on the ads they’ve been running.

“These private equity firms, they don’t want to see legislation get passed,” Beck said. “On the contrary, AHIP and the partners we work with, we’re fully committed to getting legislation signed into law.”

Michael Miller, Community Catalyst policy director, acknowledged the challenges but said he is “hopeful” lawmakers can settle on a proposal to tackle surprise medical bills. He said it would be a “missed opportunity” not to address the problem.

“You’ve got the parliamentary procedural challenges, interest group dynamics, those sticking points,” Miller said. “My hope is that people remember what the impetus is in the first place: to protect people in what is obviously an unfair system.”

Correction: Rep. Buddy Carter is a pharmacist, not a doctor.


In the five years before Congress passed the INTERDICT Act, over 67,000 people died from synthetic opioid overdoses. (Video: The Washington Post, Photo: Salwan Georges/The Washington Post/The Washington Post)

AHH: At least twice in the past four years, measures to address a fentanyl crisis went nowhere, our Post colleagues Katie Zezima and Colby Itkowitz report in this investigation.

“A small group of lawmakers has been sounding the alarm on fentanyl since the drug started causing a spike in overdose deaths in 2013. But they were unable to pick up traction in Congress, controlled by Republicans for years, watching bills to address fentanyl languish and expire, sometimes, they said, at the behest of powerful interests including the pharmaceutical industry, which has made billions of dollars from opioids,” Katie and Colby write. “In recent interviews with The Washington Post, nearly two dozen current and former members of Congress expressed anger and exasperation that the rise of synthetic opioids drew so little notice and action in Washington.”

The lack of action from Congress to deal with the fentanyl crisis, some of the interviewees said, was illustrative of how the body fails to deal with major issues.

“I think it’s just inertia,” said Sen. Rob Portman (R-Ohio). “It’s hard to bring people together, hard to get stuff done around here.”

OOF: Authorities are encouraging women to come forward after more than 2,246 medically preserved fetal remains were discovered in the home of Indiana's "most prolific" abortion doctor, in the days after his Sept. 3 death. The Indiana attorney general's office wants past patients of George Klopfer to call as they investigate the fetal remains, our Post colleagues Lateshia Beachum and Marisa Iati report. Authorities in Illinois just finished their investigation of Klopfer's house in Will County, where he lived.

More than 50 detectives searched Klopfer’s home, where they found more than 70 cardboard boxes that contained the fetal remains. “There were hundreds and hundreds of boxes that we had to go through to make sure there were no more of these remains in that residence,” said Will County Sheriff Mike Kelley.. “I can tell you that in the 31 years that I’ve been doing this job, I’ve never seen anything like this, ever.”

Kelley said the fetal remains were stored among other items belonging to Klopfer in his garage. “Just imagine your garage and you walk and you’re storing whatever — car parts, bottles of motor oil,” he said. “That’s what the garage looked like ceiling to floor.”

Vice President Mike Pence, formerly Indiana governor, tweeted this:

OUCH: Walmart announced it would stop selling e-cigarettes at its 5,000 stores in the United States, citing “growing federal, state and local regulatory complexity and uncertainty” regarding the products.

The nation’s largest retailer said it would sell off its existing inventory before it suspends sales, and a spokeswoman said vaping products were a “relatively small category overall” for the company. Walmart will also stop carrying e-cigarette-related devices and accessories.

“The e-cigarette industry was quick to strike back against Walmart’s decision. The largest players in the market include Juul Labs, a San Francisco-based company that sold more than $1 billion worth of vaping products last year, and R.J. Reynolds Vapor Company’s Vuse,” our Post colleague Abha Bhattarai reports. “.. This is the second time this month that Walmart has taken a stand on a hot-button issue. On Sept. 3, the retailer said it would stop selling ammunition for military-style weapons and would no longer allow customers to openly carry firearms in stores. A number of major chains, including Kroger and Walgreens, followed with similar announcements.”


— Sen. Bernie Sanders (I-Vt.) unveiled a plan to erase Americas’ medical debt, about $81 billion, the latest in his ambitious set of promises to overhaul the nation’s health-care system.

The plan also "calls for replacing the giant credit reporting agencies with a ‘public credit registry’ that would ignore medical debt when calculating credit scores,” the New York Times’s Margot Sanger-Katz and Sydney Ember report. “The proposals reflect Mr. Sanders’s concern that the medical system has placed financial hardships on too many Americans by discouraging them from seeking needed medical care — but also by saddling them with expensive and unfair bills that can harm their financial security, ding their credit and, in some cases, lead to bankruptcy.”

Sanders spoke about medical debt at a recent campaign event, via Politico's Dan Diamond: 

— A new poll from the Wall Street Journal and NBC finds about two-thirds of registered voters support expanding Medicare by letting people buy into the program, but 56 percent say they are against a Medicare-for-all plan that would mean getting rid of private insurance.

“Of 12 policy ideas tested in the poll, providing government-sponsored health care to undocumented immigrants was the least popular among the broader electorate, with 62% rejecting it,” the Wall Street Journal’s John McCormick reports. “In a June Democratic debate, all 10 candidates on the stage, including Messrs. Biden and Sanders, raised their hands when asked who backed the idea. In the new survey, it was supported by 64% of Democratic primary voters but only 36% of voters overall.”

The poll found 78 percent of Democratic primary voters want to allow everyone to buy into a Medicare program for their health coverage. The survey underscores a tension on health care within the Democratic Party where more aggressive approaches have a majority opposition and less aggressive ideas have majority support, John adds. 

 — And here are a few more good reads: 

Bernie Sanders has a problem. Her name is Elizabeth Warren. (Sean Sullivan, Isaac Stanley-Becker and Chelsea Janes)


White House abruptly cancels meeting with vaping advocates (Politico )


FDA proposal would require vape makers to share safety studies (Stat News )

WHO accuses Tanzania of withholding information about suspected Ebola cases (Max Bearak)


Outside NRA headquarters, Virginia Democrats focus on gun violence (Antonio Olivo)

Why Rep. Abigail Spanberger is all in on gun control (Jenna Portnoy)


How a ‘Sesame Street’ Muppet became embroiled in a controversy over autism (Lindsey Bever)

Nearly 100 doctors have tried to diagnose this man’s devastating illness — without success (Sandra Boodman)

Deadly mosquito-borne virus has Michigan officials moving high school football games (Jacob Bogage)


Coming Up

  • The House Oversight and Reform Subcommittee on Economic and Consumer Policy holds a hearing on the outbreak of lung disease on Tuesday.
  • The House Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies holds a hearing on international food assistance programs at USDA and USAID on Wednesday.
  • The House Energy and Commerce Subcommittee on Oversight and Investigations holds a hearing on e-cigarettes on Wednesday.
  • The House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies holds a hearing about investments in medical research on Wednesday.