The bipartisan plan to end surprise ER bills, explained

By Sarah Kliff

Being an emergency room patient can be a pretty frightening experience. I know this because I’ve been spending the past year running a project on emergency room billing — and because a few months ago, I ended up an emergency room patient myself.

A few weeks after I had my baby, I developed an infection related to breastfeeding called mastitis. The infection gave me 104-degree fevers and painful swelling, all while I was trying to take care of a newborn. When my OB-GYN saw me, she sent me to the emergency room because my case had become especially bad.

Being in the emergency room was scary for all the reasons it’s scary to be that sick — the doctors were talking about admitting me to the hospital for more intensive treatment — but it was also scary because I spend a lot of time reading about surprise emergency room bills and I was worried about getting one myself.

I knew the hospital was in network with my insurance, but I had no idea whether the radiologist reading my ultrasound, who worked remotely, would accept my insurance. To be totally honest, I didn’t even ask if the radiologist was in network. I had a triple-digit fever, a screaming baby, and little ability to think through insurance billing. Besides, my doctor said I needed the scan to examine the abscess in my breast — who was I to turn it down on the account of billing worries?

Instead, I went in for the scan and hoped for the best.

So far, things have turned out fine — I’ve only been billed a $150 copayment for my ER trip, and the mastitis cleared up a few days after the visit. But a lot of patients in a similar situation don’t end up fine, like the patient I wrote about who was left with a $7,924 bill after an oral surgery performed by an out-of-network doctor at his in-network emergency room, or the patient profiled by NPR and Kaiser Health News who ended up with an astronomical $108,951 bill for a similar situation.

Senators are proposing a solution to this problem — that doesn’t involve journalists writing about individual cases

When I came back from leave this week, I was especially interested to see a new legislative proposal from a bipartisan group of senators that would target this exact type of situation: surprise ER billing.

The policy proposal, which you can read here, essentially bars out-of-network doctors from billing patients directly for their care. Instead, they would have to seek payment from the insurance plan. This would mean that in the cases above, the out-of-network doctors couldn’t send those big bills to the patients, who’d be all set after paying their emergency room copays.

The doctors would instead have to work with patients’ insurance, which would pay the greater of the following two amounts:

  • The median in-network rate negotiated by health plans
  • 125 percent of the average amount paid to similar providers in the same geographic area

The Senate proposal would also require out-of-network doctors and hospitals to tell patients that they are out of network once their condition has stabilized, and give them the opportunity to transfer to an in-network facility.

This bill is notable in a few ways. For one, it’s a bipartisan health care bill in the Senate — you don’t see that very much these days! I’m told by one staffer familiar with the negotiations that this group has long shown an interest in bringing more transparency to health care prices, and surprise emergency bills seemed like a natural starting point.

”Given the reports of families with insurance getting surprised with massive bills, this would be an important first step in the work to bring more price transparency,” the staffer said.

The second is that it’s pretty good policy too! That’s the general feedback I got from Zack Cooper, an associate professor at Yale University, who, along with his colleague Fiona Scott Morton, has done a lot of pioneering research to uncover how frequently and where these surprise bills happen.

”It is fantastic that they’re doing something, and that it’s bipartisan,” he says. “It’s one of those areas where we can agree what is happening now is not good, and this gets us 80 percent of the way to fixing it.”

Cooper certainly has his quibbles with the Senate proposal. For one, it bases out-of-network reimbursement rates on current in-network rates. And those in-network fees are already really high. So while this bill might protect consumers, it probably won’t do a lot to tackle health care spending.

”My concern here is that in-network rates are already quite high, so we’re cementing that into the system,” he says. “The current world gives emergency physicians tremendous power in negotiating higher in-network rates.”

But on balance, Cooper sees the Senate proposal as a positive step — a big improvement on how things work today. He told me it’s one of those situations where he wouldn’t want to see the perfect be the enemy of the good, and where you actually have Democrats and Republicans working on a policy solution to make our health care system work just a tiny bit better.

Do you have an emergency room bill from the past five years? Share it with us! I’ve been running a year-long investigation into emergency room billing that relies on reader-submitted bills. Help us out and submit yours here.

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