HHS Releases New Guidance as the Surprise-Billing Ban Faces Another Legal Challenge

HHS released new guidance this week related to the surprise-billing ban included in the Consolidated Appropriations Act of 2021 (CAA).

The CAA – which passed at the end of 2020 – included the No Surprises Act, which holds patients harmless from surprise medical bills, including from air-ambulance providers, by ensuring they are only responsible for their in-network cost-sharing amounts in both emergency situations and certain non-emergency situations where patients do not have the ability to choose an in-network provider. For other claims, this new surprise-billing agreement utilizes an arbitration process with some patient safeguards. As a federal law, the No Surprises Act serves as a baseline for consumer protection in all states. Many states have their own surprise-billing law on the books, which provides at least the same level of protection as the No Surprises Act. In most cases, the state law will apply to fully insured plans but, if no state law exists, the No Surprises Act applies to both fully insured and self-funded plans.

The second IFR, released by the administration in late 2021, laid out requirements for providers in the case of uninsured (or self-pay) individuals. In these cases, the provider must provide a “good-faith estimate” of anticipated charges for the care that the individual is seeking. (Individuals who fall under this category include those who are uninsured and those who are covered under some sort of group health plan but do not have a claim submitted to their issuer.) The good-faith estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities. In the IFR, CMS provided the example of a surgery, where the good-faith estimate might include the cost of the surgery, any labs or tests, and the anesthesia that might be used during the operation. If an item or service is something that isn’t scheduled separately from the surgery itself, it will generally be included in the good-faith estimate.

While the IFR laid out this requirement, it also stated that HHS would not enforce the requirement that the good-faith estimate include items or services from other providers or facilities through December 31, 2022. The FAQ released this week clarifies that the agency will continue this policy beyond December 31, pending future rulemaking.

In other surprise-billing news, the Texas Medical Association  has filed yet another lawsuit challenging the No Surprises Act. This is TMA’s third attempt at challenging the law; TMA’s first suit, filed in December 2021, argued that the independent dispute resolution (IDR) process outlined by the second IFR was “arbitrary and capricious.” Specifically, TMA challenged the final rule’s requirement that IDR entities presume that the qualified payment amount is the appropriate out-of-network payment amount. This part of the rule, they claimed, violates the Administrative Procedure Act and is beyond the reach of the agencies’ legal authority. In February, U.S. District Judge Jeremy D. Kernodle sided with TMA, ruling that HHS cannot instruct mediators to “give rates insurers and providers contracted with in the past extra weight compared with other factors.”

In response to Judge Kernodle’s ruling, the agencies issued a third IFR in August. This regulation rolled back the importance of the QPA by stating that IDR entities (IDREs) no longer need to select the offer closest to the QPA. While the IDRE must still begin the process by considering the QPA, IDREs should then consider additional information submitted by a party (or requested by the IDRE) to determine which offer best reflects the appropriate out-of-network rate.

TMA’s lawsuit filed this week challenges the first IFR, once again focusing on the importance of the QPA in the IDR process. Specifically, the TMA alleges that the rule “artificially deflates” the QPA. “TMA is concerned that these provisions unfairly disadvantage physicians in payment disputes with health insurers and will ultimately rob patients access to physicians’ care,” TMA President Dr. Gary W. Floyd told media outlets.

The Coalition Against Surprise Medical Billing, of which NAHU is a member, released the following statement in response to TMA’s latest suit: “Following initial fillings in 2021 and September 2022, additional efforts by TMA and their allies further jeopardize the cost-saving and patient-focused regulations of the law. The No Surprises Act is working for Americans. Recent data shows it has prevented 9 million surprise bills in the first nine months of 2022. So why would TMA continue to fight so hard against it?”

Source: National Association of Benefits and Insurance Professionals