The No Surprises Act: How PIRG and a returning alum helped win a new federal ban on surprise medical bills

Here’s a surprise that nobody likes: the heart-stopping moment when you learn that you owe a hospital or doctor thousands of dollars for a procedure that you thought was covered by your insurance.

Thanks in part to U.S. PIRG, most of these so-called surprise medical bills will soon be against the law. Our success in this campaign was due, in turn, to the leadership of Patricia Kelmar, who was a MASSPIRG student leader in the 1980s, an NJPIRG staff person in the late ‘80s and early ‘90s, and a health care policy expert and advocate for nearly two decades.

For a deeper look at the significance of the law, and the role that PIRG played in winning its passage, we talked with Patricia about the months leading up to what has been called the most significant health care reform since the Affordable Care Act. Here’s a summary of our conversation:

Can you talk about your history working on the issue of surprise medical billing?

I’ve been working on the issue for a long time, mostly in the states (and in particular New Jersey) with the NJ Health Care Quality Institute and AARP NJ. And the great thing about the campaign for federal protections is we already had, as the PIRGs often do, evidence that laws preventing surprise bills work on the state level. Thanks in part to PIRG’s advocacy, California, Oregon and Texas all have policies that ban surprise billing for many people and settle payment disputes between providers and insurers in a way that prevents cost-shifting and keeps overall health care costs down.

When and how did the campaign for national action get started?

About a year and a half ago, a coalition was formed in D.C. to say, enough is enough. Too many people were still vulnerable to surprise medical bills. Moreover, more and more hospitals were using private equity-backed hiring companies (some of the most vocal opponents to a federal ban on surprise billing) to staff their emergency rooms with out-of-network providers, increasing the chance that even if consumers choose an in-network hospital, they’ll be slammed with a surprise bill. Plus, the state laws can only impact state-regulated plans — and about 60 percent of people with employer-sponsored insurance are enrolled in plans that are regulated under federal law.

Four different bills were introduced in Congress, and so our coalition began to organize and educate citizens and decision-makers on the issue, including holding lobby days for consumers who’ve experienced surprise billing to discuss the problem with their lawmakers. But the opposition came out in full force to fight a federal solution to surprise billing, spending over $58 million for lobbying in one year alone.

What happened next?

Federal action stalled out — while everyone could agree that consumers should be protected from balance billing (when out-of-network providers charge you the difference between their fees and the maximum amount allowed by your insurance company), we still needed a way to settle how the health plan would pay the provider once the cost was lifted off the patient. Figuring out that element took the better part of a year.

How did we ultimately help break that gridlock?

We kept the pressure on Congress, urging PIRG members to write letters (more than 5,000 of them) about the need for this consumer protection. And COVID added still more urgency to the effort, as it was causing more emergency room visits and therefore more out-of-network bills. This was our chance to pass meaningful reform, which people need now more than ever due to the pandemic.

Our voices were amplified by our Republican champ in the Senate, Lamar Alexander from Tennessee. He had introduced a strong bill and kept negotiating on the House side, trying to get them to come to an agreement. And it was so important to him that he was insisting — in particular to Senate Majority Leader Mitch McConnell — that the bill get passed before Sen. Alexander’s retirement in January 2021. That was key to our strategy — when we wrote to leadership and when we spoke to our members and the media, we were sure to point out the strong bipartisan nature of the bill. We spoke about the urgency to have this cross the finish line before we lost our key Republican champion. And we heard that Sen. McConnell was sensitive to the desire of his friend Lamar Alexander to get this major consumer win before his retirement.

And when was the final bill announced?

Yes, a compromise bill surfaced in December, at which point PIRG and our coalition partners made the final push to help ensure its passage. Members wrote more letters, our advocates emphasized to lawmakers that this chance to tackle surprise billing (in the middle of a pandemic, with a senator who’s about to retire and wants to pass this bill before he does) would likely not come again. And we talked with Sen. Alexander’s staff pretty much every other day to coordinate who we still needed to call or lobby or mobilize. Sure enough, it was passed on the 22nd and signed by the president five days later. After months and months of gridlock, plus a huge uptick in ad spending by the opposition, suddenly all the pieces aligned and folks on both sides of the aisle decided it was time to act — it was a really rewarding moment.

How did your past experiences in and outside of the network — MASSPIRG student, NJPIRG staff person, and long-time health care advocate — prepare you for this campaign?

Working both sides of the aisle was an important lesson I learned at NJPIRG because the state was swinging from Republican to Democratic control and back again. And it was really important to remember that no one party will be in power forever. Building relationships is key to having the long-term trust needed to be able to find champions in all parties.

I have also learned, especially in health care policy, you have to remember not to let perfect get in the way of good. There was a moment in this surprise billing campaign where some consumer groups wanted to walk away from the bill because it did not include everything they wanted. But I urged the coalition to stay together and support the compromise language. Rarely is any piece of legislation perfect, and knowing when a compromise is still a win is a skill that consumer health advocates need to have. There are too many stakeholders, too many special interests pushing back. But in this case, ultimately, even through a compromise bill, consumers got a win.