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The Health 202: Surprise billing reforms look set to be included in year-end spending bill

with Alexandra Ellerbeck

Congress looks poised to include surprise medical billing protections in a bill to keep the government funded beyond today.

But it's an open question of whether the provisions will be struck at the last minute. 

The down-to-the-wire showdown is a prime example of how incredibly hard it is to reform the United States health-care system in favor of patients – even when everyone agrees they should be protected.

“From insurers to providers to patient groups, everyone agrees it’s not fair for consumers to get these bills,” said Jen Taylor, senior director of federal relations for the patient advocacy group Families USA. “And yet at the end of the day people are putting their bottom line ahead of patients’ needs.”

Doctors and insurers have been furiously lobbying Congress all week.

Physician and hospital groups are trying to pull the legislation further in the direction they want – even though it already skews toward their preferred solution for resolving surprise medical bills. 

These bills – sometimes totaling tens or even hundreds of thousands of dollars – can result when a patient unintentionally gets care from a doctor or hospital outside their health plan’s network. Lawmakers have spent the last two years working on a solution to protect patients from surprise medical bills while guiding insurers and providers on how to resolve them.

The compromise measure, agreed to by GOP and Democratic leaders of four congressional committees, says an independent arbiter decides the payment for such bills when insurers and providers can’t reach an agreement on their own. Insurers have feared the process will leave too much room for providers to extract massive payments for medical services rendered out of network.

Now providers want something more. Lobbyists say they’re pushing for a ban on the arbiter considering Medicare rates in deciding surprise medical bills, although it’s not clear they’ll be successful. Medicare typically pays significantly less for medical care compared with private health plans. Banning arbiters from considering Medicare rates is another way of trying to slant the arbitration process toward higher rates doctors and hospitals would like to charge.

The American Medical Association surprised many this week when it came out against the measure altogether.

“We oppose enactment of the bill in its current form because it would significantly disadvantage already stressed physician practices, particularly small physician practices,” the AMA wrote in a letter to Congress.

The announcement raised questions about whether the AMA would support any surprise billing reforms if won’t support this one.

Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy:

Shawn Gremminger, director of health policy for the Pacific Business Group on Health:

“We have explored policy solutions ad nauseum and the reality is nobody wants to foot the bill for changes to the system,” Taylor said. “In the meantime, patients are the ones who have taken the hit and that is unacceptable.”

But the legislation might just be “crappy enough” to pass.

As is often the case, the legislation doesn’t fully satisfy the demands of anyone involved in surprise medical billing. But there’s something in the agreement for everyone – patients, insurers and providers – to like.

“It’s just crappy enough for everybody, nobody got everything they wanted,” a lobbyist close to the negotiations told me.

Patient advocates say they're pleased overall, although they don't love the arbitration approach.

They’d pushed hard through 2019 for Congress to broker a deal, and then watched in disappointment as chances for reform fell apart at the end of the year. Now they generally support this new agreement – even as some fume privately that it reflects heavy influence by the physician lobby. 

The measure mostly protects patients from surprise medical bills. For the first time, physicians and facilities couldn’t charge patients for the difference between in-network cost sharing and total charges, in what's called balance billing.

The prohibition would apply to emergency medical services at out-of-network facilities and out-of-network providers at in-network hospitals. It would also apply to air ambulances, who were left out of previous iterations of the legislation.

It’s “a major breakthrough for patients looking for relief from surprise medical bills,” said Nancy Brown, CEO of the American Heart Association. “We strongly urge lawmakers to pass this legislation before adjourning for the year.”

The measure places some guardrails around the arbitration process.

These limits are intended to keep doctors from gaming the system. Insurers and patient advocates have cited them as reasons to support the reforms.

For one thing, the third-party arbiter must consider median in-network prices when settling disputes around a medical service or procedure. They’re also prohibited from considering the charges billed by doctors and hospitals. These charges are often widely inflated; stories about patients being charged hundreds of dollars for a band-aid.

The measure also limits when arbitration may occur. 

For example, the two parties must first spend 30 days trying to resolve their differences before going to arbitration. Once arbitration begins, the mediator must consider in-network rates for the services under consideration. And there’s a 90-day “cooling off” period, in which the party that brought the dispute can’t initiative another resolution process for the same service.

All in all, the measure protects patients while balancing the concerns of outside parties such as doctors and insurers, Senate staffers involved in the effort argued to reporters earlier this week.

“It cuts both ways,” a staffer for Sen. Bill Cassidy (R-La.) told reporters. “Not having criteria that would be overly beneficial to providers or plans, but helping the arbiter to assess the fair amount to be paid.”

There’s a lot of bipartisan support for the surprise billing agreement.

Cassidy, Sen. Maggie Hassan (D-N.H.) and 25 other senators have begged Senate leaders to include it in the spending package.

A letter they sent Monday to Senate leaders notes that the measure could save $18 billion, although that estimate is based on scores from the Congressional Budget Office on previous iterations. The funding, the senators argued, could be used to fund Community Health Centers and other primary care programs for four years.

“There will never be a broader bipartisan, bicameral solution to ending surprise medical billing and we should deal with it now,” they wrote. “Patients cannot wait any longer.”

Congress has until midnight to pass a funding bill.

But lawmakers are struggling to resolve their differences over that bill and another coronavirus relief package. Senate Majority Leader Mitch McConnell hasn’t said whether he supports the surprise medical billing agreement, and could easily erase it from any deal if it proves to be a stumbling block.

“Negotiators were hoping to resolve all of their differences and pass matching bills through the House and the Senate by Friday night, in order to marry the stimulus bill with a must-pass government funding package,” Mike DeBonis, Seung Min Kim and Jeff Stein report.

“The funding bill must be signed into law by Friday at midnight in order to avoid a government shutdown. But lawmakers are now running out of time to resolve their differences and could be forced to pass a short-term spending bill to buy them more time, dragging negotiations into the weekend or Christmas week.

Readers, this is our last Health 202 of 2020. 

Like many of you, we're relieved to bid farewell to this year as we hope and pray for a better 2021 for our nation and the world. Have a happy and healthy holiday break. We'll see you back here on Jan. 4.

Ahh, oof and ouch

AHH: The FDA is expected to approve the Moderna vaccine after an advisory panel gave the green light.

“The panel voted almost unanimously — 20 in favor, with one abstention — that the benefits of the highly effective vaccine outweighed its risks for people 18 years of age and older,” Laurie McGinley and Carolyn Y. Johnson report.

The Food and Drug Administration advisory group's endorsement of the vaccine comes after Moderna released data showing it to be 94 percent effective. The FDA promised to move “rapidly” to grant the vaccine emergency authorization, with some sources indicating that it could come as soon as today. 

Gen. Gustave Perna, who is overseeing the federal effort to distribute vaccines, has said that at least 6 million doses are ready to be shipped, pending regulatory approval. 

During the advisory committee meeting on Thursday, the FDA also addressed reports that a small number of people have had an allergic reaction to the Pfizer-BioNTech vaccine, which was authorized for emergency use last Friday. The agency said that the data did not support new restrictions but that it is working to investigate the cause of the reactions. 

OOF: States report confusion after the government reduces vaccine shipments.

Officials said they were alerted Wednesday that second shipments of Pfizer-BioNTech’s vaccine next week would be smaller than originally planned, Isaac Stanley-Becker, Yasmeen Abutaleb and Lena H. Sun report.

The reduction prompted concern in health departments across the country about whether Operation Warp Speed, the Trump administration’s vaccine accelerator program, could distribute doses quickly enough to meet the target of delivering first shots to 20 million people by year’s end,” Isaac, Yasmeen and Lena write.

Washington Gov. Jay Inslee:

A senior administration official said that the revised estimates were the results of states requesting an expedited timeline for vaccine doses. The official said that the federal government had decided to allocate next week's doses on Tuesday instead of Friday, resulting in fewer doses being available.

But Pfizer seemed to contradict that explanation: “We have millions more doses sitting in our warehouse but, as of now, we have not received any shipment instructions for additional doses,” the pharmaceutical giant said in a statement. 

The clashing accounts come as the government and Pfizer are in closing in on a deal over additional vaccine doses. The United States turned down an opportunity earlier this year to double its purchase of 100 million doses. When officials tried to buy the doses later, Pfizer said that it had already made commitments to other countries. Now, it looks as though the pharmaceutical giant may provide 50 million doses over the second and third quarters of 2021 

OUCH: The wife of Health and Human Services Secretary Alex Azar has tested positive for covid-19.

Last night, Azar informed staff in an email that his wife, Jennifer, tested positive for the virus, Politico's Dan Diamond reports.

"Today, my family learned that my wife Jennifer has tested positive for Covid-19," Azar wrote in an email. 

“He added that his wife ‘scrupulously followed public health guidelines’ and immediately self-isolated after her initial symptoms and even after she received a negative diagnosis from an initial instant test,” Dan writes. “A subsequent molecular test, which is more reliable, revealed that she was positive, Azar added.”

“Azar said that he and his children have tested negative and have no symptoms,” Dan adds. “The HHS secretary also said he will continue to work on the advice of his physician and public health experts like CDC Director Robert Redfield.”

Coronavirus latest

Vice President Mike Pence, Second Lady Karen Pence, and Surgeon General Jerome Adams are scheduled to be vaccinated.

It's set to happen on live television at 8 a.m. to help boost public confidence in the vaccine.

The Capitol’s leading doctor will receive vaccine doses to administer to Supreme Court justices and lawmakers.

The move is part of a plan crafted by intelligence experts to ensure that the government continues to function, Paul Kane reports. 

“Congress and the Supreme Court, along with executive branch agencies, will be provided with a specific number of covid-19 doses to meet long-standing requirements for continuity of government operations,” Brian P. Monahan, the attending physician of the U.S. Congress and the Supreme Court, wrote in a letter to Senate Majority Leader Mitch McConnell (R-Ky.).

McConnell, who is 78 and survived polio, announced he was eligible for a vaccine and would receive one in the coming days. The senior lawmaker stressed that he would continue to wear a mask and practice social distancing.

“The vaccination issue has vexed some members of Congress,” Paul writes. “They have publicly expressed a desire to model good behavior and reassure the public that they should get the shots, but they have feared such a move would be seen as a special perk for members of Congress.”

Monahan’s letter cites national security reasons for providing vaccines to top leaders. It remains unclear, however, which leaders will be eligible for the shots and how widely they will be available to rank-and-file lawmakers.

  • The Supreme Court denied a Kentucky religious school an exemption from a coronavirus school-closure order, Robert Barnes reports. The court took no stand on whether the Danville Christian Academy was unfairly singled out, instead noting that the state's school closure mandate was set to expire before most schools reopen from holiday break. The court told the plaintiffs they could return if the governor issues a new mandate when schools are back in session.
  • Biden adviser Cedric Richmond, a congressman from Louisiana, also tested positive for the virus. Richmond is slated to join the Biden administration as a senior adviser and director of the Office of Public Engagement. His case is the first instance of a coronavirus infection in someone formally picked to join the administration, the New York Times's Michael D. Shear reports.

Unequal impacts

Vaccinations in nursing homes may raise conflicts around consent.

The roughly 3 million Americans who live in nursing homes, assisted-living centers and group homes are first in line for the vaccine, according to recommendations from the Centers for Disease Control and Prevention and various state plans.

“But long-term care residents’ participation in the fastest and most extensive vaccination effort in U.S. history is clouded by a significant complication: More than half have cognitive impairment or dementia,” Kaiser Health News’s Judith Graham reports. “This raises a number of questions. Will all older adults in long-term care understand the details of the vaccines and be able to consent to getting them?”

“Imagine that the patient, who has some degree of cognitive impairment, says ‘yes’ to the vaccine but the surrogate says ‘no’ and tells the nursing home, ‘How dare you try to do this?” Alta Charo, a professor of law and bioethics at the University of Wisconsin at Madison Law School, said in describing a possible dilemma to KHN.

America’s Marshall Islander communities are grappling with covid-19.

“The United States nuked their homeland. Ruined their food supply. Then promised them free health care through Medicaid before Congress later yanked it away. Now, it's given them coronavirus—at a far greater rate than the general U.S. population, and infinitely higher than their troubled home islands, where local Covid-19 transmission is nonexistent,” Politico’s Dan Diamond reports.

After the United States used the Marshall Islands for nuclear test-bombing, thousands of islanders fled the contaminated sites and moved to America, where they were promised special rights to live in America as noncitizens and access government programs such as Medicaid. But Congress stripped access to Medicaid in 1996 as part of a welfare-reform package, in what officials say was a legislative oversight.

The lack of health care access — combined with high rates of preexisting conditions — have contributed to the devastating toll of the virus on the Marshallese community.

“In Spokane County, Wash., the Marshallese represent just 1 percent of the local population—but by late June, about one-third of all coronavirus cases,” Dan writes. In Northwest Arkansas, a team of scientists from the CDC found that the local Marshallese were more than 71 times as likely to be infected with the virus as the White population, 96 times as likely to be hospitalized and 65 times as likely to die, he writes.

The Heroes Act, the coronavirus relief package passed by the House in May, contained legislation to reinstate Medicaid for the islanders, but when negotiations over relief broke down, the deal was left in limbo. 

Elsewhere in healthcare

Members of the Sackler family denied responsibility for the opioid epidemic.

Members of the family who led Purdue Pharma apologized to victims of the opioid crisis but denied personal responsibility in their first public testimony in decades, Meryl Kornfield reports. David and Kathe Sackler, both former Purdue board members, answered questions from the House Oversight Committee about whether they pushed sales of the company’s blockbuster drug OxyContin and how much they knew about its addictive potential.

“More than 3,000 cities, towns and other jurisdictions that are suing drug companies have blamed the Sackler family, in part, for the opioid epidemic following Purdue’s development of OxyContin in 1996. In federal court, the communities argue they were flooded with painkillers, fueling the opioid crisis that has killed more than 450,000 people in the United States in the past two decades,” Meryl writes.

Purdue has earned more than $30 billion since OxyContin arrived on the market, allowing the Sackler family to withdraw more than $10 billion from the company. The Sacklers blamed nameless individuals in the company for the opioid crisis.

“I have tried to figure out if there’s anything I could have done differently knowing what I knew then, not what I know now,” Kathe Sackler said. “I have to say there is nothing I can find that I would have done differently.”

Sugar rush

Some people experience “long covid” months after their battle with covid-19. While cures remain unknown, there are some practical steps you can take. (Video: Allie Caren/The Washington Post)