Bipartisan Legislation Aims to Limit Surprise Medical Bills

by Paul L. Croce

On September 18, 2018, a bipartisan group of Senators unveiled a draft measure to limit patients’ exposure to surprise medical bills. The draft bill is sponsored by Senator Bill Cassidy (R-LA) and has received support from Senators Tom Carper (D-DE), Todd Young (R-IN), Claire McCaskill (D-MO), Chuck Grassley (R-IA) and Michael Bennett (D-CO).

The bill is intended to limit balance billing to patients in the following three circumstances:

  1. Emergency services provided by an out-of-network provider in an out-of-network facility: The draft bill would limit a patient’s financial exposure when receiving emergency services at an out-of-network facility to the cost sharing amount provided by their health insurance plan for the same services provided by an in-network provider at an in-network facility. Providers would be prohibited from billing the patient any additional amount. Rather, amounts in excess of the cost sharing amounts would be paid by the insurer in accordance with state law. If state law does not establish the applicable amount, the health insurer would pay the greater of: (a) the median in-network amount for services charged by a provider in the same specialty and area; or (b) 125% of the average amount allowed by insurers for the service for a provider in the same specialty and area.
  2. Non-Emergency services following an emergency service at an out-of-network facility: When a patient has received emergency services from an out-of-network provider and requires additional non-emergency services after being stabilized, the draft bill requires the facility to notify the patient in writing that they may be required to pay higher cost-sharing than if they received services at an in-network facility and provide the patient with the option to transfer to an in-network facility. The patient must sign an acknowledgement that they received such notification. If the patient elects to remain in the out-of-network facility, the draft bill does not limit the amount the facility can charge for the additional services provided.
  3. Non-Emergency services performed by an out-of-network provider at an in-network facility: The draft bill would also prohibit an out-of-network provider, who provides non-emergency services at an in-network facility, from billing the patient beyond the amount of their in-network cost sharing. Rather the excess amount would be paid by the insurer at an amount determined in the same manner as for emergency services provided by an out-of-network provider.


The bill remains a draft and is not scheduled for vote. However, the bipartisan support for the bill suggests it may gain significant traction or at least jumpstart additional discussions in Congress about how to limit the use of balance billing.