- The CMS has asked parties involved in surprise billing disputes to put payment determinations on hold following a Texas court’s decision last week to vacate portions of the final rule.
- The government is currently in the process of evaluating and updating independent dispute resolution guidance, systems and documents to make them consistent with the judge’s decision, according to a CMS notice on Friday.
- Along with pausing new determinations, arbiters should recall any determinations made after Feb. 6, the CMS said. Arbiters can continue working through other parts of the dispute resolution process as they wait for further guidance from federal regulators.
Surprise medical bills have been banned in America since 2022 as provisions of the No Surprises Act kicked into gear. But how health insurers and medical providers hash out payments is still in flux due to a series of lawsuits threatening the dispute resolution process that relies on third-party arbiters for mediation.
The Texas Medical Association has brought the brunt of legal challenges to the rule. The group filed a lawsuit in September alleging the arbitration process set up in the final No Surprises rule favored payers over providers. That’s because the rule anchors price decisions to a metric called the qualifying payment amount, or the median in-network rate, which is set by insurers, the TMA argued.
Last week, a Texas judge ruled in favor of the TMA, vacating portions of the final rule and remanding it back to the government. It was the second time the judge issued a favorable decision to providers, having previously instructed the HHS to nix language in the draft rule telling arbiters to begin with the presumption that the qualifying payment amount was the appropriate reimbursement amount for providers.
The HHS removed that language from the final rule. But “they have not relinquished their goal of privileging the QPA, tilting arbitrations in favor of insurers, and thereby lowering payments to providers,” Judge Jeremy Kernodle of Texas said in his opinion.
Surprise bills can be expensive, and usually occur when a patient unknowingly receives care from an out-of-network provider, even if they’re at an in-network facility. Congress passed the No Surprises Act in 2020 to tamp down on the practice by holding consumers blameless for any surprise bills, and requiring payers and providers to figure out payments themselves.
But the method regulators arrived at, called baseball-style arbitration, has proved controversial, and the law hasn’t been perfect in preventing the unexpected bills. One in five Americans still report receiving surprise bills, despite the ban. That’s in part because the law has notable exceptions — for example, ground ambulances were excluded from the ban, though they’re a frequent source of the bills.
In January, the HHS said it’s received significantly more requests to resolve payment disputes than the department expected.