Doctors push back as Congress takes aim at surprise medical bills

When Carol Pak-Teng, an emergency room doctor in New Jersey, hosted a fundraiser in December for Democratic freshman Rep. Tom Malinowski, her guests, mostly doctors, were pleased when she steered the conversation to surprise medical bills.

This was a chance to send a message to Washington that any surprise billing legislation should protect doctors' incomes in their battle over payments with insurers. Lawmakers are grappling over several approaches to curtail the practice that can leave patients on the hook for huge medical bills, even if they have insurance.

As Congress begins its 2020 legislative session, there is evidence the doctors' message has been received: The bills with the most momentum are making more and more concessions to physicians.

As surprise medical billing has emerged as a hot-button issue for voters, doctors, hospitals and insurers have been lobbying to protect their own bottom line. All that lobbying meant nothing got passed last year.

Television and Internet ads are the most visible manifestation of the battle. But in taking their cause to politicians, doctors have waged an extraordinary on-the-ground stealth campaign to win over members of Congress. Their professional credentials give them a kind of gravitas compared with lobbyists who are merely hired guns.

For patients, getting an unexpected bill for a treatment they thought was covered by insurance can be financially devastating. Surprise bills are sometimes triggered when patients unwittingly see a doctor out of network.

Fixing this is ultimately a fight between doctors and insurers over rate-setting and reimbursement. But as more patients balk at surprise bills, lawmakers are under pressure to protect patients. In turn, powerful lobbying forces have activated to protect doctors and insurers who don't want to pay the price for a fix.

The main message physicians are using to bring lawmakers into their corner? "We just want to be paid a fair amount for the services rendered," Pak-Teng says.

Her congressman, Malinowski, has not endorsed any surprise billing legislation. In congressional testimony in July, he cited the "extra $420 million" in medical debt patients in New Jersey reckon with each year.

"There are many things that Republicans and Democrats sincerely disagree about in this body," he said. "I don't think that this is one of them. I don't see any philosophical difference amongst us about whether people should be stuck with massive surprise medical bills."

Doctors say they are taking the brunt of the criticism for the burden of surprise billing.

Little has been as powerful in shaping surprise billing legislation as the clout of hospitals and their doctors, many of whom are, in fact, employed by private equity-backed companies and armed with years of experience shaping surprise billing legislation at the state level.

They are throwing in a lot of money, funneling millions to lawmakers ahead of the 2020 elections. Four physician organizations that have heavily lobbied on surprise medical bills and have private equity ties — the American College of Emergency Physicians, Envision Healthcare, US Acute Care Solutions and US Anesthesia Partners — gave roughly $1.1 million in 2019 to members of Congress, according to a Kaiser Health News analysis of Federal Election Commission records.

The biggest recipients, from all four PACs combined, were Reps. Donna Shalala, D-Fla., and Stephanie Murphy, D-Fla., who each received $26,000. Sen. Thom Tillis, R-N.C., took in $25,500, Senate Majority Leader Mitch McConnell, R-Ky., got $25,000, and Rep. Brett Guthrie, R-Ky., received $22,500.

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That was in tandem with a ground game led by local doctors. ER doctors, anesthesiologists, radiologists and other specialists who most often charge out-of-network prices – and also are among the highest-compensated practitioners — fanned out to shape legislation in a way that maintains their pay and to voice their concern to lawmakers that insurance companies would have too much leverage to control their compensation.

"We by necessity place a tremendous amount of trust in our physicians," says Zack Cooper, an associate professor at Yale University who has extensively researched surprise medical bills. "Frankly, they have an easier time lobbying members [of Congress] than the folks who are affected by surprise billing."

Arguing over the fix

Lawmakers in both parties appear unified on resolving the problem of surprise billing. But as was clear when all the air blew out of legislative proposals on the table at year's end, that is largely where the agreement ends.

Fixing the problem comes down to settling on a system for deciding how much to pay for a disputed bill. One approach is to set up an outside arbitration process, in which doctors and insurance companies would negotiate payment — this is the model preferred by doctors, who contend it puts them on better footing against insurance companies. Another option would be to resolve surprise billing disputes by having insurance companies pay doctors based on the median in-network rate for the service, an approach known as benchmarking. Large employers, labor unions and insurance companies prefer this, but doctors feel it gives insurers too much control over prices they would have to live with.

The failure to get legislation through Congress in 2019 has set up a potentially explosive battle in an election year. Republicans and Democrats who have vowed to do something about health care costs must reckon with powerful industry groups whose influence transcends party lines. Meanwhile, physicians and hospitals have made their case in Washington and back home through in-person meetings and phone calls with lawmakers and congressional staff. They've hosted dinners and fundraisers and organized fly-ins to flood Capitol Hill with in-person meetings. They've even led tours of their emergency rooms.

Pak-Teng is among them, coming to Washington this week along with other physicians to petition lawmakers. She is employed by Envision, a physician staffing company backed by private equity firm KKR. She's also on the board of the American Academy of Emergency Medicine, a trade organization representing ER doctors.

"There is a lot of anti-physician rhetoric out there," says Pak-Teng, who is pushing her physician colleagues to be more active in shaping public policy by sharing stories about the reality of caring for patients.

The lobbying by hospitals and physicians trying to protect their reimbursements has divided key lawmakers, compounding disagreements among senior House Democrats over the policy details of a bill and turf wars in Congress. Three House committees have unveiled legislation to ban surprise medical bills, each with different details.

"We are not trying to stop legislation. We are trying to stop bad legislation," says Anthony Cirillo, an emergency medicine physician who describes a "bad" bill as one that favors insurance companies over doctors.

Cirillo is also a lobbyist for US Acute Care Solutions, a physician staffing company backed by private equity firm Welsh, Carson, Anderson & Stowe. WCAS, which manages $27 billion in assets and is focused on health care and technology investments, is based in New York City and co-founded US Acute Care Solutions in 2015.

In an interview, Cirillo says he met with lawmakers and their aides about "10 to 12 times" in Washington last year. Financial disclosures show he spent $340,000 between July and September lobbying on surprise billing on behalf of US Acute Care Solutions. USACS' political committee also contributed $134,500 to lawmakers in 2019, according to FEC records.

Tilt toward doctors

Even before the private equity-fueled group Doctor Patient Unity started running ads warning of the dangers of government price controls as an argument against legislation, surprise billing legislation being drafted in one of Congress' most powerful health care committees was already tilting to be more favorable to doctors.

"People on the Hill are very sympathetic to hospitals and physicians because they're actually providing the care itself," said one Democratic aide, speaking on the condition of anonymity to candidly describe sensitive political dynamics. "Nobody wants to defend the insurers."

In May, a House Energy and Commerce Committee draft proposal included no mention of an outside arbitration process. The same was true for a bill the Senate Health, Education, Labor and Pensions Committee approved in June. Instead, under those proposals, surprise billing disputes would be resolved by insurance companies paying doctors based on similar rates in that area.

By mid-July, though — roughly a week before Doctor Patient Unity registered as a business in Virginia — the House legislation was amended to allow doctors to appeal to an independent arbiter if the payment exceeds $1,250. The revision was pushed by two physicians on the committee — Democrat Raul Ruiz of California and Republican Larry Bucshon of Indiana — and was a moment Sherif Zaafran, a Texas anesthesiologist, describes as a "turning point" in negotiations over the bill.

"It's all about fairness," says Zaafran, who works for private equity-backed US Anesthesia Partners. He has been involved for a decade in surprise billing fights in Texas, which enacted a new law with an arbitration process last year. US Anesthesia Partners contributed $197,900 to members of Congress last year.

Zaafran chaired another coalition of medical specialties, Physicians for Fair Coverage, in 2019, and pressured Congress to pursue a surprise billing approach modeled on a New York law under which insurers and providers rely on arbitration. Under that process, if there is a payment dispute between doctors and insurers, the two sides submit a proposed dollar amount to an independent mediator, who then selects one.

In New York, the mediators were told to base their decisions on the 80th percentile of the prices set by the hospital or physician. Research has suggested that the model is broadly making health care more expensive for state residents because of higher payments to doctors, according to findings from the USC-Brookings Schaeffer Initiative for Health Policy.

Still, on Capitol Hill, doctors complained that many procedures would fail to cost enough to qualify for arbitration as proposed in the House bill, bolstered by data ER doctors presented to lawmakers showing that prices largely fall below $1,250.

"It's largely out of reach," says Laura Wooster, a lobbyist with the American College of Emergency Physicians, whose political action committee contributed $708,000 to lawmakers in 2019. "The problem with a threshold is you just have one threshold. It's going to impact different specialties so differently."

By December, House Energy and Commerce Committee leaders and Sen. Lamar Alexander, a Republican who chairs the Senate HELP Committee, agreed to lower the arbitration threshold to $750 as part of a bipartisan agreement on a bill. Notably, several hospital lobbying organizations — such as the American Hospital Association and the Greater New York Hospital Association, the latter a strong financial backer of Senate Minority Leader Chuck Schumer — refused to back the deal.

Pak-Teng and other physicians also say that arbitration threshold is still too high. The House Education and Labor Committee has unveiled surprise billing legislation with a similar framework.

"I'm open to listening to all sides on this," Rep. Greg Walden of Oregon, the top Republican on the House Energy and Commerce Committee, said in an interview. "We want to make sure doctors are adequately compensated."

Walden had harsh words for private equity firms that have attacked the House legislation in a series of TV and Internet ads, saying they were "misleading and scaring people" and just made lawmakers dig in deeper. The ads prompted a bipartisan probe from Walden and committee Chairman Frank Pallone, D-N.J., into how the companies have influenced surprise billing practices.

"I'm not trying to hurtle a rock at them, but they've been throwing a few my way," he said.

What's coming

Arvind Venkat, a Pittsburgh emergency physician employed by staffing company US Acute Care Solutions, traveled to Washington multiple times last year to meet with congressional offices representing Pennsylvania. But he also made sure to bring up surprise bills on his home turf, giving local congressman, freshman Democrat Conor Lamb, a tour of the emergency room at Allegheny General Hospital last summer.

"There are two issues here," says Venkat, who leads the Pennsylvania chapter of the American College of Emergency Physicians and has practiced at Allegheny General for 12 years. "Patients need to be protected, [and] we need to avoid anything that disrupts in-network relationships between insurers and clinicians."

The call seems to have been heard: Legislation is likely to change further this year as the House Ways and Means Committee pushes an approach that is friendlier to hospitals and doctors. It builds off a one-page document committee leaders issued Dec. 11 that blunted momentum for a bipartisan deal that was to be included in a December spending bill.

The latest proposal from the committee includes an arbitration process to resolve payment disputes, with no minimum-dollar amount needed to trigger it, and doesn't ban surprise billing from air ambulance companies — a win for yet another special-interest lobbying group. The patient protections would not take effect until 2022.

Richard Neal, a Massachusetts Democrat who chairs the committee, remains an ally of Massachusetts hospitals. He released the brief December surprise billing document two days after leaders of the Massachusetts Medical Society and the Massachusetts Health & Hospital Association wrote a joint op-ed in The Boston Globe arguing that benchmarking physician payments would wreck the state's health care system.

"The heavy hand of government would create an unfair imbalance in the health care marketplace and insurers would have no incentive to engage physicians in building robust health care networks. The connected system of care we have all been working toward in Massachusetts would immediately become fragmented and disjointed," the two groups wrote in The Boston Globe.

"They weren't asking for favorable treatment. They were asking for fair treatment, and there's a big difference," Neal said in an interview. "I don't want to rule anything out, but I think that the momentum right now is arbitration."

"We need to get a little bit more balance," added Shalala, who endorsed the Ways and Means legislation unveiled earlier this month.

Shalala has at least two hospitals in her Miami-area district that rely on private equity-supported physician staffing companies.

"I'm worried about the hospitals," she said. "And the providers obviously include the docs."

KHN reporter Victoria Knight contributed to this story.

Kaiser Health News (KHN) is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that is not affiliated with Kaiser Permanente.

Copyright 2020 Kaiser Health News. To see more, visit Kaiser Health News.

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