The 'dark money’ campaign to kill legislative fixes to surprise bills is spooking Congress

Pity the poor consumer trying to understand the coming Congressional debate over surprise medical bills. Recall they are those staggering amounts of debt heaped on unsuspecting patients after they believed insurance had paid for their care. Those bills are growing rapidly and ensnaring more and more Americans in what has become one of the medical industry’s most unsavory business practices. And yet as unseemly as the practice sounds, dark-money groups are spending fiercely to keep the surprises coming.

Your chances of getting stuck with such a bill are going up, too, according to a study just published in JAMA Internal Medicine. The number of surprise bills for both ER and inpatient admissions are rising. In 2010, about 32% of all ER visits resulted in surprise bills. In 2016, nearly 43% did. Surprise bills for inpatient admissions jumped from about 26% to 42% over the same period. What’s more, the average amount billed to patients for ER visits nearly tripled and the cost for inpatient admissions more than doubled.

As these unwanted financial surprises hit more Americans, the special interests that benefit from socking patients with additional bills and their allies in the healing business have been lobbying hard in Congress and working the airwaves to convince consumers that any Congressional efforts this fall to correct the surprise billing problem may actually harm patients.

At their core the ads are trying to flip the conversation, which has largely been driven by excellent media coverage of the practice, and has helped build public support for Congress to stop it. We’ve seen this play before, going back to the 1990s when the insurance industry called on the fictitious ad couple Harry and Louise to torpedo the Clinton health plan (“If they choose, we lose”). The campaigns of the pharmaceutical industry similarly come to mind. They turned the conversation to the value of life saving drugs instead of their stratospheric prices.

Bottom line: this kind of advertising works.

As I’ve recently written, at the heart of the surprise bills dispute is the industry’s fear of any kind of cost containment in the U.S. health system, something sorely needed and bitterly fought for decades by the medical businesses whose incomes are at stake. It’s hardly surprising, then, that Congressional lobbying along with advertising aimed at the public, all designed to serve the interests of one group of medical stakeholders versus another, is cloaked in the cover of protecting patients.

What follows is a who’s who of the combatants with big dogs in the fight to help viewers and anyone else interested in sorting out the surprise billing debate.

Physicians for Fair Coverage, an interest group that includes a lot of ER doctors racking up surprise bills, warns: “Big insurance companies want a one-size fits all approach.” The ad says reforms could make it harder for you to “see the best doctors when you need them the most.” Another ad warns that proposed legislation would “cut money vulnerable patients rely on the most. That means seniors, children and Americans relying on Medicaid would be hurt. … Tell Congress we can end surprise billing without shredding the safety net.”     

Another group, Doctor Patient Unity, has targeted members of Congress, including eight Republican senators with ads like this one aimed at Colorado Sen. Cory Gardner that tells him to choose patients, not “big insurance.” The ads also urge members to “vote no on government rate setting.” A story on the website of station KARE in Minneapolis, which has run ads from the group, notes that one of the bills in Congress doesn’t set actually set rates for out-of-network procedures, but instead sets benchmarks for how much out-of-network providers can collect if a surprise bill shows up. But in a TV ad that lasts a few seconds, how would the viewer be able to make that distinction?

Bloomberg Government points out that the identity of who is really paying for these dark-money ads “is shrouded in secrecy,” and reports that since these TV ads are considered “issue ads,” they don’t require Federal Election Commission disclosure. No transparency here!

The air ambulance industry, which has gained notoriety over the last few years for its surprise billing tactics, too, has added its own ads to the confusing pile of persuasion aimed at the public. According to OpenSecrets.org, the industry has spent hundreds of thousands of dollars on TV and radio ads like this one from Global Medical Response. The scary message is that air medical services are at risk. More than 30 bases have closed this year, disappearing from rural communities that need these services the most, the ad says, urging viewers to ‘Tell Congress put patients first and protect access to air medical services.”

It’s not hard to see that someone living in a remote rural area might just do that. Never mind that in the last few years media stories have revealed how families have been financially devastated from air ambulance bills, and that state laws are ineffective in regulating this industry.

At the heart of the surprise bills dispute is the industry’s fear of any kind of cost containment in the U.S. health system, something sorely needed and bitterly fought for decades by the medical businesses whose incomes are at stake. It’s hardly surprising, then, that Congressional lobbying along with advertising aimed at the public, all designed to serve the interests of one group of medical stakeholders versus another, is cloaked in the cover of protecting patients.

And if all this isn’t confusing enough, there’s yet another group, called the Coalition Against Surprise Medical Billing. It represents large employers, health insurance agents, and business associations like the National Business Group on Health, who all want a say in the matter.

The group advocates eliminating balance billing in situations where a patient is involuntarily treated by an out-of-network doctor, and wants to require health insurers to reimburse out-of-network providers based on local market rates negotiated by local providers. That would avoid what it calls a cumbersome arbitration process (the approach preferred by the aforementioned doctors’ groups) “that increases costs for patients, businesses and taxpayers,” according to the group’s website.

It, too, urges patients to contact their elected representatives to support the Coalition’s position. I asked Steve Wojcik, vice president of public policy at the National Business Group on Health, why hospitals and doctors are on the other side of the lobbying fence on this issue. “I believe that the investor-driven physician staffing firms fear that if our preferences become law, their business model — go out of network and raise prices — is shot.”

Wojcik says, “everyone agrees on banning balance billing,” which is another name for surprise bills and is prohibited in Medicare. “The disagreement is over payment rates and processes for determining payment for out-of-network physicians.” The scary TV ads flooding the airwaves from this group or that mask the real issue. It all comes down to money and who gets how much. As one of the barber shop ads from the Coalition puts it, “Private equity firms buy doctor groups, and take them out of network to overcharge patients.”

How this turns out is anyone’s guess right now, and it may be that Congress has been sufficiently spooked by the TV ads targeting its members that it will be too timid to pass any legislation addressing this growing problem. But there’s one thing we do know from the history of health care battles: The longer the legislative fixes twist in the wind and the attack ads run, the less likely any real protections for patients become.

Veteran health care journalist Trudy Lieberman is a contributing editor at the Center for Health Journalism Digital and a regular contributor to the Remaking Health Care column.