Surprise billing legislation might be unconstitutional 

A top Republican lawyer believes the Senate's surprise billing proposal may violate the First and Fifth Amendments, The Hill reports.

Surprise medical bills occur when an insured patient unintentionally receives care from an out-of-network provider, often in an emergency situation or when out-of-network physicians work at in-network hospitals. Legislation introduced in the Senate, June 19, aims to eliminate such charges by prohibiting out-of-network deductibles and creating a benchmark for provider reimbursement based on local commercial rates.

In a memo for the law firm Kirkland & Ellis, Paul Clement argues the legislation proposed oversimplifies the issue and would give all negotiating power to the insurance companies. Providers would have to choose between going in-network at payer-dictated rates or staying out-of-network at federal-dictated rates, he writes.

Mr. Clement believes the ban on balance billing would violate the Takings Clause of the Fifth Amendment, which is "designed to guard against forcing some people alone to bear burdens that should be borne by the public as a whole," according to the memo. It could also violate the First Amendment by interfering with providers' ability to associate and negotiate higher rates with payers.

Read more here.


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