Skip to main content
Sister Publication Links
  • ESG: THE NEW IMPERATIVE
Subscribe
  • My Account
  • Login
  • Subscribe
  • News
    • Current News
    • COVID-19
    • Providers
    • Insurance
    • Government
    • Finance
    • Technology
    • Safety & Quality
    • Transformation
    • People
    • Regional News
    • Digital Edition (Web Version)
    • Patients
    • Operations
    • Care Delivery
    • Payment
    • Midwest
    • Northeast
    • South
    • West
  • Digital Health
  • Insights
    • ACA 10 Years After
    • Best Practices
    • Special Reports
    • Innovations
  • Data/Lists
    • Rankings/Lists
    • Interactive Databases
    • Data Points
  • Opinion
    • Bold Moves
    • Breaking Bias
    • Commentaries
    • Letters
    • Vital Signs Blog
    • From the Editor
  • Awards
    • Nominate/Eligibility
    • 100 Most Influential People
    • 50 Most Influential Clinical Executives
    • Best Places to Work in Healthcare
    • Excellence in Governance
    • Health Care Hall of Fame
    • Healthcare Marketing Impact Awards
    • Top 25 Emerging Leaders
    • Top 25 Innovators
    • Diversity in Healthcare
    • Women in Healthcare
    • - Luminaries
    • - Top 25 Diversity Leaders
    • - Leaders to Watch
    • - Luminaries
    • - Top 25 Women Leaders
    • - Women to Watch
  • Events
    • Conferences
    • Galas
    • Virtual Briefings
    • Webinars
    • Custom Media Event: ESG Summit
    • Transformation Summit
    • Women Leaders in Healthcare Conference
    • Social Determinants of Health Symposium
    • Leadership Symposium
    • Health Care Hall of Fame Gala
    • Top 25 Women Leaders Gala
    • Best Places to Work Awards Gala
    • Top 25 Diversity Leaders Gala
    • - Hospital of the Future
    • - Value Based Care
    • - Supply Chain Revenue Cycle
    • - Hospital at Home
    • - Workplace of the Future
    • - Strategic Marketing
    • - Virtual Health
  • Listen
    • Podcast - Beyond the Byline
    • Sponsored Podcast - Healthcare Insider
    • Video Series - The Check Up
    • Sponsored Video Series - One on One
  • MORE +
    • Advertise
    • Media Kit
    • Newsletters
    • Jobs
    • People on the Move
    • Reprints & Licensing
MENU
Breadcrumb
  1. Home
  2. Legal
April 20, 2022 04:30 PM

Surprise bill resolutions' path forward hinges on final rule

Maya Goldman
  • Tweet
  • Share
  • Share
  • Email
  • More
    Reprints Print
    billing_image_0_i.jpg
    Getty Images

    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."

    Download Modern Healthcare’s app to stay informed when industry news breaks.

    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.

    Letter
    to the
    Editor

    Send us a letter

    Have an opinion about this story? Click here to submit a Letter to the Editor, and we may publish it in print.

    Recommended for You
    SCOTUS TX abortion GettyImages-513333156_i copy_i.png
    HHS issues HIPAA guidance after abortion ruling
    healthcare workers vaccine
    High court rejects COVID-19 shot mandate case from New York
    Sponsored Content
    Daily Dose Newsletter: Sign up to receive a late afternoon weekday roundup of that day’s breaking news and developments in healthcare.
    Get Newsletters

    Sign up for enewsletters and alerts to receive breaking news and in-depth coverage of healthcare events and trends, as they happen, right to your inbox.

    Subscribe Today
    MH Magazine Cover

    MH magazine offers content that sheds light on healthcare leaders’ complex choices and touch points—from strategy, governance, leadership development and finance to operations, clinical care, and marketing.

    Subscribe
    Connect with Us
    • LinkedIn
    • Twitter
    • Facebook
    • RSS

    Our Mission

    Modern Healthcare empowers industry leaders to succeed by providing unbiased reporting of the news, insights, analysis and data.

    Contact Us

    (877) 812-1581

    Email us

     

    Resources
    • Contact Us
    • Advertise with Us
    • Ad Choices Ad Choices
    • Sitemap
    Editorial Dept
    • Submission Guidelines
    • Code of Ethics
    • Awards
    • About Us
    Legal
    • Terms and Conditions
    • Privacy Policy
    • Privacy Request
    Modern Healthcare
    Copyright © 1996-2022. Crain Communications, Inc. All Rights Reserved.
    • News
      • Current News
      • COVID-19
      • Providers
      • Insurance
      • Government
      • Finance
      • Technology
      • Safety & Quality
      • Transformation
        • Patients
        • Operations
        • Care Delivery
        • Payment
      • People
      • Regional News
        • Midwest
        • Northeast
        • South
        • West
      • Digital Edition (Web Version)
    • Digital Health
    • Insights
      • ACA 10 Years After
      • Best Practices
      • Special Reports
      • Innovations
    • Data/Lists
      • Rankings/Lists
      • Interactive Databases
      • Data Points
    • Opinion
      • Bold Moves
      • Breaking Bias
      • Commentaries
      • Letters
      • Vital Signs Blog
      • From the Editor
    • Awards
      • Nominate/Eligibility
      • 100 Most Influential People
      • 50 Most Influential Clinical Executives
      • Best Places to Work in Healthcare
      • Excellence in Governance
      • Health Care Hall of Fame
      • Healthcare Marketing Impact Awards
      • Top 25 Emerging Leaders
      • Top 25 Innovators
      • Diversity in Healthcare
        • - Luminaries
        • - Top 25 Diversity Leaders
        • - Leaders to Watch
      • Women in Healthcare
        • - Luminaries
        • - Top 25 Women Leaders
        • - Women to Watch
    • Events
      • Conferences
        • Transformation Summit
        • Women Leaders in Healthcare Conference
        • Social Determinants of Health Symposium
        • Leadership Symposium
      • Galas
        • Health Care Hall of Fame Gala
        • Top 25 Women Leaders Gala
        • Best Places to Work Awards Gala
        • Top 25 Diversity Leaders Gala
      • Virtual Briefings
        • - Hospital of the Future
        • - Value Based Care
        • - Supply Chain Revenue Cycle
        • - Hospital at Home
        • - Workplace of the Future
        • - Strategic Marketing
        • - Virtual Health
      • Webinars
      • Custom Media Event: ESG Summit
    • Listen
      • Podcast - Beyond the Byline
      • Sponsored Podcast - Healthcare Insider
      • Video Series - The Check Up
      • Sponsored Video Series - One on One
    • MORE +
      • Advertise
      • Media Kit
      • Newsletters
      • Jobs
      • People on the Move
      • Reprints & Licensing