Addressing the problem of surprise medical bills continues to be a priority issue at the legislature. Currently there are two competing bills to fix this issue and on April 4 CMS conveyed its strong support of a significant rewrite, otherwise known as a “strike below,” to Senate Bill 19-134 at a hearing of the Senate Health and Human Services Committee. CMS and others in the "house of medicine" believe that the senate bill provides a better fix to surprise bills than the other piece of legislation, House Bill 19-1174.

The importance of the issue for physicians and their patients was evident as 40 doctors in scrubs and white coats attended the hearing, and around 10 actually testified. Physicians emphasized that patients have to be taken out of the middle of these health plan/provider disputes, unethical billing practices are not supported, and any solution must not further tip the balance of market power into the hands of health plans.

David Downs, MD, a CMS past president and current chair of the CMS Work Group on Health Care Costs and Quality, testified on behalf of CMS. Unlike HB19-1174, SB19-134 clearly states that the bill applies to out-of-network services in an emergency or when such services are received at an in-network facility, not when the patient knowingly chooses to receive the services of an out-of-network provider. Importantly, the strike below creates a more appropriate payment rate methodology as compared to HB19-1174, that does not incentivize providers to remain out-of-network, nor incentivize carriers to lower in-network rates. Downs said, “it’s the right balance to allow market negotiations to produce good in-network contracts and good access to care for patients.”

HB19-1174 has already passed the House and will soon be heard in the Senate so physician advocacy in the coming days will be critical to push to either change or defeat this bill in favor of SB 19-134. Watch for CMS legislative action alerts and be sure to respond quickly.  

SB 19-134 is sponsored by Sen. Rhonda Fields (D-Aurora) and Sen. Jack Tate (R-Centennial). HB 19-1174 is sponsored by Rep. Daneya Esgar (D-Pueblo), Rep. Marc Catlin (R-Montrose), Sen. Bob Gardner (R-Colorado Springs) and Sen. Brittany Pettersen (D-Lakewood).

In his testimony in support of the strike below, Downs stressed that the changes containing provisions for network adequacy are key to ensuring patients are protected. “We have long stated that network adequacy should travel with a resolution to surprise medical bills.”

Currently, carriers are merely required to describe their procedures for monitoring access to facility-based providers at their participating facilities as part of the annual reporting of their access plan. CMS believes more than an annual report is needed. The strike below to SB19-134 specifically requires that the carrier document that it has enough participating facility-based providers, such as emergency physicians, pathologists, radiologists and anesthesiologists, at each of its participating facilities to ensure timely access to covered services.

Combined with the documentation of network adequacy, the bill as amended makes it an unfair or deceptive trade practice for a carrier to publish information that a facility is in-network when there are no facility-based providers under contract. Publishing accurate information about in-network facilities is an important way to ensure that patients are not surprised.

The strike below also clearly states that the bill applies to out-of-network services in an emergency or when such services are received at an in-network facility, not when the patient knowingly chooses to receive the services of an out-of-network provider. The House Bill as written is ambiguous and open to legal interpretation.

Finally, the payment methodology for the OON provider has received a lot of discussion throughout the course of the session. The strike below to SB19-134 sets the out-of-network payment at a rate that does not incentivize providers to remain out-of-network, nor does it incentivize carriers to lower in-network rates. Downs said, “It’s the right balance to allow market negotiations to produce good in-network contracts and good access-to-care for patients.”

The House Bill was amended to include an arbitration provision to resolve payment disputes between out-of-network providers and carriers at their own expense.  The strike below to SB19-134 includes a perfecting amendment to streamline the process through the development of a standardized arbitration form. By allowing out-of-network providers to bundle like claims into a single arbitration it ensures the affordability of the process for providers.

Stay tuned as this bill continues to work through the legislative process. House Bill 19-1174 has been referred to the Senate Judiciary Committee and will be heard on April 15.


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