ARTICLE
23 September 2019

ML Strategies Health Care Preview: Surprise Billing Issue Heats Up

M
Mintz

Contributor

Mintz is a general practice, full-service Am Law 100 law firm with more than 600 attorneys. We are headquartered in Boston and have additional US offices in Los Angeles, Miami, New York City, San Diego, San Francisco, and Washington, DC, as well as an office in Toronto, Canada.
This week, Congress is working towards passage of a continuing resolution that would fund the government through the middle of November.
United States Food, Drugs, Healthcare, Life Sciences

This week, Congressional appropriators are hoping to finalize a continuing resolution (CR) that would extend funding for the government through the middle of November. The House Rules Committee will meet on Tuesday to consider the CR, a procedural step towards House passage this week. However, the timing for passage is not entirely clear given a number of moving parts that could hold up smooth passage of the bill. These issues include extraneous policies not necessarily tied to health care, such as trade policies and border wall fencing issues.

The Senate may consider standalone appropriations that are not wrapped up in partisan battles, but the expectation is that the 12 funding bills will be extended together absent a bipartisan breakthrough. This is partly because while the Senate may hold votes on appropriations bills this week, they are expected to be different than the House-passed bills meaning we would still be looking at both chambers heading to conference to resolve differences in the text.

What this means for drug pricing, surprise billing, and health extenders is likely welcome news for stakeholders advocating aggressively for disparate provisions in each package. It was revealed late last week that two physician staff agencies, backed by private equity funds, are behind the recent ad buy around surprise billing. The group, Doctor Patient Unity, opposes the federal benchmark for payment and wants solely an independent arbiter to settle disputes. It is unclear what impact the ad buy is having but we expect it will slow down the debate and potentially force policymakers back to the table.

Interestingly, the House E&C Committee is reportedly probing private equity's role in the health care space and its relationship with surprise billing practices. A number of private equity firms who own hospital-based physician groups will likely fall into the crosshairs given the intense bipartisan focus on this issue. It carries the potential to influence the issue depending on the results of the investigation.

The debate around these issues will likely persist into the fall with more hearings and a conference committee if policymakers can move forward. The forecast is shaping up for an end-of-year mega-deal inclusive of dozens of outstanding programs and policies.

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