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Trump Administration Issues Deadline on Surprise Billing, Reviews Health Plan Policy Agenda
Practical Law Legal Update w-027-7220 (Approx. 5 pages)
Trump Administration Issues Deadline on Surprise Billing, Reviews Health Plan Policy Agenda
by Practical Law Employee Benefits & Executive Compensation
| Published on 30 Sep 2020 • USA (National/Federal) |
In an executive order, the Trump administration has instructed the Department of Health and Human Services (HHS) to take administrative action regarding surprise billing if Congress fails to reach a legislative solution on this issue by December 31, 2020 (Executive Order 13951 (Sept. 24, 2020)). In setting this deadline, the administration also highlighted many of its recent policy initiatives involving health plans and coverage.
In an executive order, the Trump administration has instructed the Department of Health and Human Services (HHS) to take administrative action regarding surprise billing if Congress fails to reach a legislative solution on this issue by December 31, 2020 (Executive Order 13951 (Sept. 24, 2020)). In setting this deadline, the administration also highlighted many of its recent policy initiatives involving health plans.
Potential Administrative Action on Surprise Billing
One of the order's operative provisions is targeted at price transparency and surprise billing practices. Surprise billing can arise in the emergency health care context, including emergency room services that are:
- Received at an out-of-network hospital.
- Provided by an out-of-network provider at an in-network facility.
The order acknowledges Congress's progress toward ending surprise billing and instructs HHS to work with Congress to reach a legislative solution by December 31, 2020. If no legislation is enacted by that date, however, the order directs HHS to take administrative action to prevent individuals from being billed for unforeseeable out-of-pocket expenses.
The order also instructs HHS, and the Departments of Labor and Treasury (collectively, the Departments) to:
- Continue efforts to expand access to health coverage.
- Ensure that individuals have meaningful price and quality information before receiving health care.
Regarding the latter item, in November 2019 the Departments issued proposed regulations that would require employer-sponsored group health plans and health insurers to disclose extensive amounts of plan cost-sharing information, on request, to participants, beneficiaries, and others (see Legal Update, Trump Administration Proposals Would Impose Extensive Cost-Sharing Disclosures on Health Plans and Insurers).
Other Trump Administration Policy Objectives
In reaching its directive on surprise billing, the Trump administration also reviewed its work—and related legislative developments—regarding several of its health plan policy objectives. This agenda has included:
- Effectively repealing the Affordable Care Act's (ACA's) individual mandate penalty, and perhaps the entire ACA (through ongoing litigation) (see Legal Update, Fifth Circuit Affirms Ruling That ACA's Individual Mandate Is Unconstitutional, But Orders Do-Over of District Court's Severability Analysis).
- Repeal of the ACA's Cadillac Plan Excise Tax (see Article, Cadillac Plan Excise Tax Under the ACA and Legal Update, Legislation Repeals ACA Cadillac Tax and Health Insurer Fee).
- Expanding individuals' health coverage options through initiatives involving high-deductible health plans (HDHPs) and health savings accounts (HSAs), health flexible spending accounts (health FSAs), and primary care arrangements and health care sharing ministries (Executive Order 13813 (Oct. 12, 2017)). For more information, see Legal Updates:
- Increased availability of short-term, limited-duration insurance (STLDI) (see Practice Note, Short-Term, Limited-Duration Insurance (STLDI)).
- Expanded coverage options involving health reimbursement arrangements (HRAs) (see Practice Notes, Individual Coverage Health Reimbursement Arrangements (ICHRAs): Overview and Excepted Benefit Health Reimbursement Arrangements (EBHRAs)).
- Final regulations addressing association health plans (AHPs) (see Practice Note, Association Health Plans).
The administration also referenced its guidance involving the US outbreak of COVID-19, the disease that results from SARS-CoV-2 (see Practice Note, COVID-19 Compliance for Health and Welfare Plans). In addition to COVID-19 guidance to expand the use of telehealth, this includes the administration's "Warp Speed" initiative to develop and deliver a COVID-19 vaccine, therapeutics, and diagnostics.
Practical Impact
With the upcoming election as a backdrop, it remains to be seen whether Congress can pass legislation on surprise billing in the coming months. For its part, however, HHS has continued to focus on surprise billing—including by issuing a report on the topic in July (as required by Executive Order 13877 (June 24, 2019)). After addressing common sources of surprise billing, the report reviews recent Congressional activity in this space and—as with the administration's new order—calls upon Congress to enact federal legislation (perhaps as part of an additional COVID-19 relief bill).