ACTION ALERT- Oppose Surprise Billing Legislation in the Senate

CALLING ALL FSP MEMBERS! ACTION ALERT: Oppose Surprise Billing Legislation 

All CAP Members should have received a CAP ACTION ALERT last week requesting you to contact your senators and urge them to oppose the Lower Health Care Costs Act of 2019 (S. 1895). We strongly encourage FSP Members to TAKE ACTION now and respond to the alert using the customized letters sent by CAP to contact your local senators.

The CAP is extremely concerned with several provisions in Title 1 of the Lower Health Care Costs Act of 2019, which is designed to address surprise billing. The CAP opposes this legislation as introduced. It has always been the CAP’s position that patients should not be financially penalized for the failure of health insurance plans to establish adequate in-network access to hospital-based physician specialties and we have been continuously engaged with Congress on this issue. However, we strongly oppose sections of the legislation the Senate HELP Committee has introduced, as these provisions contain an inequitable benchmark that would enrich health plans. The CAP is disappointed with the exclusion on an arbitration provision to settle disputes. The legislation as drafted will undermine the economic viability of health care delivery and cause significant harm to the pathologists’ ability to serve patients, especially in rural areas.  We need all FSP members to urge their senators to remove any benchmark payment that pegs to median in-network rates, and replace it with a payment system that balances insurer and physician rates.

Since Congress started discussions on rectifying this issue last year, the physician community has forcefully and consistently stated that using a payment benchmark tied solely to the median in-network rates is untenable and unacceptable. We cannot accept a payment formula that is unilaterally controlled by insurance companies, who have somehow become absolved from paying for the care they promised to patients. As providers of health care, small businesses, and integral parts of the health care delivery system, it is essential that physicians can contract in good faith, without the federal government concentrating decisive negotiating power in the hands of one party.

For 20 years, Congress fought against the sustainable growth rate formula in the Physician Fee Schedule, warding off drastic cuts to physician payments to help ensure the best physician workforce was available for the American people. We are wondering today why that concern is suddenly gone, and Congress feels insurers should not have to negotiate fairly with doctors across the country.

Ways you can help impact this legislation:

  1. Respond to the CAP ACTION ALERT sent on Friday, June 21 and contact your local senators with the custom letters sent to you by CAP.
  1. If you are active on social media, please re-tweet CAP tweets on the issue:

Dr. Bruce Williams’ letter to the editor featured in the WSJ:

The CAP’s tweet in support of Rep. Ruiz’s legislative proposal:

  1. Write a letter to your local newspaper editor urging them to create more awareness. A sample letter to the editor on surprise billing can be found here. Some papers have requirements on the length of a letter to the editor. You might have to edit the attached draft to fit the papers requirements.

If you receive feedback from your member of Congress, please forward it to Thank you for your support.


Publication Date: 
Thursday, June 27, 2019 - 8:15am


This is important legislation with implications for us all!!! Please take a few moments to contact your congressional representatives!! Contact Sen Rubio at: and Sen Scott at: A suggested letter is here: 

Part 1:




As a practicing physician in Florida and as a constituent, I am writing you to respectfully share my concerns around the important issue of surprise billing. While I strongly agree that patients should not be held responsible for surprise bills from out-of-network providers, it is also crucial that any legislative solution to this problem protects the practice of medicine and holds insurers accountable. Unfortunately, several provisions of the proposals currently gaining traction in Congress would hand disproportionate power to the insurance lobby at the expense of physicians and patients. In order to avoid the harm this would cause to Floridians, it is vitally important for the following concerns to be addressed in any final legislative package.


First, Congress must avoid allowing insurance companies to reap profits by stripping physicians of leverage to negotiate fair payments. For instance, proposals that utilize the “median in-network rate” as a benchmark for out-of-network payments would perversely incentivize insurance companies to limit their provider panels in order to deflate the median in-network rate to unsustainably low levels. Further, utilizing the median in-network rate as a payment benchmark would eliminate any incentive for insurers to contract with physicians at rates above this threshold, thereby encouraging insurers to offer “take it or leave it” contracts regardless of whether these offers reflect the actual value of care being delivered. Ultimately, this would erode patient choice and fuel consolidation across the health care industry. Moreover, depriving physicians of the right to establish prices for their own services would move us closer to a government-controlled health care system.


Proposals that lack an affordable, equitable and timely independent dispute resolution (IDR) process should similarly be avoided. An effective, mandatory and binding IDR process can allow insurers and physicians to formally settle payment disputes and avoid costly litigation. Ideally, the IDR process should utilize “baseball-style” arbitration, wherein each party submits a rate and the arbitrator must pick one. Such a system creates incentives for both parties to be reasonable in their rate submissions. Absent an effective IDR process, insurers will have little motivation to fairly settle out-of-network payment disputes, and physicians will instead be forced into expensive and time-consuming litigation. In turn, this will fuel further consolidation, as only the largest health care systems can afford to endure endless court battles.

Part 2:


Finally, Congress should not pass any legislation to address surprise billing without giving due consideration to network adequacy. Inadequate insurer networks are a leading, underlying cause of surprise bills and have precipitated many of the patient experiences that have given urgency to this debate. If the current, leading legislative proposals prevail and insurers are given the power to effectively control out-of-network payment rates without being required to maintain adequate provider networks, the result will be a loss for choice for patients, further interference in the patient-physician relationship by an increasingly emboldened and empowered insurance lobby, and an acceleration of consolidation across the health care industry.

For these reasons, I strongly urge you to support the following principles as you evaluate any proposed solution to surprise billing. Legislation that adheres to these principles will address surprise bills while ensuring beneficial and sustainable outcomes for patients, physicians, and our health care system as a whole:

  1. Patients should be protected from surprise bills from out-of-network providers.
  2. Any benchmark for out-of-network payment rates should not be based on in-network or Medicare rates. Instead, they should be based on actual charges in the geographic area where the service is rendered. This will place the underlying benchmark beyond the control of insurance companies that would seek to underpay for medical care.
  3. The data source for those charges should be an independent database, such as the FAIR database, that is not controlled by the health insurance companies.
  4.  An affordable, equitable and timely independent dispute resolution (IDR) process should be available to settle payment disagreements between insurers and physicians. Ideally, the independent dispute resolution model should utilize “baseball-style” arbitration, wherein each party submits a rate and the arbitrator must pick one. This creates incentives for both parties to be reasonable in their rate submissions.
  5. Insurers should be held accountable when they fail to maintain adequate provider networks. Inadequate provider networks precipitate many of the surprise bills that patients receive.  

Again, I strongly, respectfully urge you to support these principles as you evaluate any proposed solution to surprise billing. I firmly believe that this framework would allow Congress to protect patients from surprise bills while also protecting the practice of medicine and the freedom of choice that Floridians value in our health care system. Thank you for your consideration.


Morton H. Levitt, MD

President, Florida Society of Pathologists