Surprise bill resolutions' path forward hinges on final rule

The portal to file surprise billing independent dispute resolution claims opened on Friday, but there's a chance the process through which claims are resolved could shift in the coming months.

The Centers for Medicare and Medicaid Services released revised guidance on the resolution process last week after a Texas federal judge ruled in February that previous policy couldn't stand, in part because it unfairly advantaged insurers. But between other litigation and a final rule coming this summer, CMS still has opportunities to tweak the process.

CMS' interim final rule on the dispute resolution process instructed arbiters to start their decision-making process with the presumption that the insurer's median contracted rate was the appropriate out-of-network rate.

After the Texas judge struck that down, CMS issued replacement guidance that takes a slightly different approach: arbiters in most cases must consider additional information alongside the median contracted rate for the billed service when coming to a payment decision. But arbiters for air ambulance cases still need to begin from the median contracted rate. The Association of Air Medical Services sued the administration over the process as it relates to air ambulances and no ruling has been issued yet.

Despite the guidance change, the administration doesn't appear to be backtracking on its views about how the independent dispute resolution process should run, according to Katie Keith, a Georgetown University law professor and policy consultant who closely follows surprise billing. The updated guidance is still consistent with the statute, she said.

Additionally, the administration could still appeal the Texas decision. But the administration's position will become clearer with a final rule on the arbitration process, Keith said. Working out providers' issues with the independent dispute resolution process through the courts with a final rule on the horizon is inefficient, she added. Vacating part of the interim final rule despite the court knowing a final rule was on the horizon has caused confusion and implementation delays.

CMS plans to issue a final rule that addresses the now-vacated provisions of the process by early summer. The agency initially planned on a May release, but has reassessed its timeline, according to a brief the administration filed in a different surprise billing lawsuit.

"That, to me, is the next big thing to keep an eye on," Keith said.

The final rule could lay out the same arbitration process as the interim rule with a different justification, alter the process slightly or back down completely. CMS also hasn't clarified how broad the rule will be—the agency has two interim final rules and one proposed rule on surprise billing waiting to be finalized.

But reverting back to a system where arbiters base decisions primarily off the median contracted rate would be difficult, said Helaine Fingold, a lawyer at Epstein Becker Green specializing in health insurance regulation and a former CMS regulator.

"At some point, even though they may have a policy goal, there's also the goal of some predictability for stakeholders, and that's not a small consideration," said Fingold, who previously worked as a regulator at CMS. "I find it unlikely that they would use this [guidance] as a placeholder, thinking, oh, we'll come back to our old approach as soon as we have the opportunity."

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With the dispute resolution claims portal now open, further changes to the process could be even more difficult to implement. A payment decision on a disputed claim needs to be reached within 30 business days after an arbiter is selected, and with providers and payers able to file claims starting last week, many claims will likely be resolved before CMS finalizes its rule on the process.

"There's a point at which they need to make a decision and move on. We're really past the point. We're already in operation," Fingold said.

Regardless of what route the administration takes with modifying surprise billing dispute resolutions, there will likely be more litigation, lawyers said. Several other lawsuits on surprise billing are also still open, including the air ambulance case.