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Providers push for changes to surprise billing resolution process

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Health providers continued their push for officials to change the way out-of-network billing disputes are handled, and ask several federal departments for clarity on a requirement to provide uninsured patients cost estimates for care.

The interim final rule establishes the dispute resolution element of the No Surprises Act, and the comment period on the policy ended Monday. The rule says arbitrators assisting payers and out-of-network providers through a billing dispute should first consider a plan's median in-network rate for a service provided in the area when parties can't resolve a pay disagreement. While insurers say the policy levels the playing field, providers argue it tips the scales in favor of insurers.

"What was supposed to be an independent check on both parties is now gone. In short, the departments have forfeited this important restraint with respect to plans and issuers, while creating a nearly insurmountable set of conditions for providers," the American Hospital Association wrote in a letter.

The No Surprises Act says arbitrators should consider a list of factors when deciding how much a payer should reimburse an out-of-network provider for services. The list includes the median in-network payment rate, known as the qualified payment amount. It could also factor in market share of each party, quality measurements of the provider, patient's acuity and several other factors.

Congress handed providers a victory when it decided billing disputes should be handled through arbitration. But providers have been upset about the regulations since their release in September. The Texas Medical Association sued the federal government in an effort to block the regulations, and a hearing is set for Feb. 4.

AHA wants officials to put out a final rule requiring arbitrators to consider all the factors on the list.

Providers argue federal officials' decision to calculate the median in-network payment rate as the assumed out-of-network rate makes other factors less important and goes against lawmakers' wishes. The Federation of American Hospitals wrote in its letter that it doesn't believe the federal government had the authority to establish the process for how arbitrators should evaluate payment offers.

"Congress wanted an equitable and balanced system to resolve disputes with no single factor given preference over others… This could disincentivize insurers from offering fair contracts to physicians and reduce patient access to care," the American Academy of Neurology wrote in its comments.

Lawmakers themselves don't agree on whether the rule lines up with their vision. A bipartisan group of 152 lawmakers sent a letter to federal department heads in November pushing them to change the rule so median in-network payment rates aren't the default, and leaders of the influential House Ways & Means Committee sent a similar message in October. But House Education and Labor Committee leadership continues to support the rule.

"In addition to comporting with the plain language of the statute, the approach adopted by the IFR is consistent with Congress's bipartisan goal of lowering premiums and preventing inflation in healthcare spending," a Nov. 19 letter from committee chair Bobby Scott (D-Va.) and ranking member Virginia Foxx (R-N.C.) said.

Insurers say giving more weight to median in-network rates in disputes makes sense. Ensuring out-of-network rates look similar to those leads to predictability in the dispute resolution process, which can help move towards not needing the process in the first place, AHIP wrote in its letter. The insurance lobby also said the move may encourage more providers to move in-network.

"Without an objective standard as a guide for the (arbitrators), the question of how out-of-network providers are to be compensated becomes a highly subjective decision where arbitrators contracted through (arbitrators) must guess and the predictability of IDR becomes scattershot," AHIP wrote.

AHIP also asked officials to issue guidance on how to tell if state laws apply to a claim and how the web portal functions when it's not clear whether a dispute has to be handled through federal or state processes.

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Additionally, some provider groups worry the rule's requirement that providers offer uninsured or self-paying patients with cost estimates for care will confuse patients. Other services may be scheduled separately, and those costs wouldn't be included in the estimate given to a patient, the American Medical Group Association wrote in a comment letter.

AHA encouraged the Health and Human Services Department to align hospital price transparency requirements with the cost estimate policy. Hospitals that comply with the price transparency patient estimator tool requirements should be considered in compliance with surprise billing cost estimation requirements too, AHA wrote in its letter.

The surprise billing regulations go into effect Jan. 1.

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