Advocacy Update

February 14, 2023

In this Issue:

Federal Judge Once Again Agrees with Physicians on No Surprises Act Arbitration Rules

Once again, a federal judge in Texas agreed with physicians that the government’s regulations for the No Surprises Act are inconsistent with the statute. In a lawsuit filed by the Texas Medical Association (TMA), a federal district court judge on February 6 removed regulatory provisions regarding the independent dispute resolution (IDR) process and granted the association’s motion for summary judgment.

The judge had agreed with the TMA that the government’s latest regulations still heavily weighed on the qualifying payment amount (QPA) in the payment determination, which favors insurers and “places a thumb on the scale.” The decision was a victory for physicians, including pathologists, who have fought against the improper regulations.

CMS Pauses IDR Decisions

Following the decision, the Centers for Medicare & Medicaid Services (CMS) said it was in the process of evaluating and updating the federal IDR process. “Effective immediately, certified IDR entities should not issue new payment determinations until receiving further guidance from the Departments,” the CMS said on February 10. “Certified IDR entities also should recall any payment determinations issued after February 6.”

The 2020 No Surprises Act protects patients from unexpected medical bills and limits how much they can be charged for emergency and non-emergency services from out-of-network providers. It also established an arbitration (IDR) process for when payers and providers disagreed about those rates.

An interim final rule for the IDR process originally disregarded Congress’ intentions of creating a fair system where physicians and health insurers can resolve disputes without one payment determination factor having more weight than another. However, under the revised final rule, the CMS continued to direct arbitrators in the IDR process to disregard certain factors, just as the interim final rule did.

The CAP and many other provider groups had warned that these kinds of requirements for the IDR process heavily favor insurers and would cause substantial harm to physicians.

New Hampshire Pathologists Oppose Out-of-Network Legislation

On February 1, with the support of the CAP, the New Hampshire Society of Pathologists (NHSP) represented by Eric Loo, MD, FCAP, testified before the New Hampshire Senate Health and Human Services Committee in opposition to legislation (Senate Bill 173) advocated by the Department of Insurance to revise the state's out-of-network law. The CAP partners with state societies to oppose adverse state legislative proposals to pathology practices.

Dr. Loo also testified on behalf of the New Hampshire Medical Society, as its current President. (Eric Loo, MD. FCAP, Testimony at 4:39:30). The New Hampshire out-of-network law was enacted in 2018, regulating the billing and payment for such services based upon a “commercially reasonable” rate as determined by the Department of Insurance when such payment is in dispute.

In his testimony, Dr. Loo stated the current New Hampshire law, in December 2021, was determined by the federal Centers for Medicare & Medicaid Services (CMS) and the Health and Human Services (HHS) Department as a "specified state law" that fully met the requirements of the federal No Surprises Act and as such is controlling for state-regulated health plans. Accordingly, Dr. Loo affirmed, "based upon this official recognition, we see no compelling public policy need to amend the law."

Dr. Loo stated that Senate Bill 173 "would negate the negotiated agreement of the 2018 law and instead confer upon the Commissioner of Insurance unilateral, unfettered discretion to determine an out-of-network rate based upon the Commissioner's determination of 'what is in the public interest.'" Dr. Loo noted that no other state has such a vague standard for determining an out-of-network rate.

The Department of Insurance testified in support of the bill and cited concerns over delays in insurance industry payments to health care providers after arbitration concludes and asserted "until the issue is resolved and the payment is issued that bill continues to hang over the head of the consumer."

The New Hampshire Hospital Association (NHHA) rebutted that under the federal NSA, and the current New Hampshire law, no patient was at financial risk of being balanced billed and that the dispute resolution process at the state and federal levels does not create any additional financial risk for patients.

Previously, the effective coalition of hospital-based physician specialties, the New Hampshire Medical Society, and the New Hampshire Hospital Association defeated a similar bill in 2022 backed by the Insurance Department.

The CAP will continue to monitor and collaborate with NHSP, NHMS, NHHA, and the rest of the physician coalition to oppose the bill.

State Pathology Societies in Georgia and Washington Back Biomarker Coverage Legislation

On February 3, the Georgia Association of Pathologists (GAP), in collaboration with the CAP, communicated its support for Georgia House Bill 85, legislation to mandate Medicaid and private insurance coverage of biomarker testing. Similarly, in Washington State, the Washington State Society of Pathologists (WSSP) testified in favor of legislation that would provide mandated coverage for biomarker testing. The CAP supports state pathology societies and partners with them to influence public policy.

The legislation is consistent with the new CAP public policy that supports mandated coverage for biomarker testing and the waiver of prior authorization for such testing. In addition, support for the Georgia bill came from a broad coalition of medical groups, including the Georgia Hospital Association, and patient advocacy groups led by the American Cancer Society (ACS).

The GAP affirmed, “Pathologists, as leaders in clinical laboratory medicine, routinely supervise, conduct, and recommend biomarker testing to diagnose cancer., and other diseases, and to inform optimal treatment and improve health outcomes for patients.

“The GAP and the CAP believe biomarker test coverage should be mandated when such testing is medically necessary for clinically relevant diagnostic purposes, and/or treatment, supported by medical and scientific evidence as delineated in the bill,” the GAP further stated.

In Washington State, the WSSP testified in favor of House Bill 1450, legislation that would provide mandated coverage for biomarker testing to be covered by the state health insurance plan or state-regulated health plans.

Previously, on January 31, WSSP President Erik Konnick, MD, MS, FCAP, virtually testified in favor of the bill before the House Health Care and Wellness Committee.

The WSSP subsequently submitted written comments in support of House Bill 1450, stating: “…biomarkers are assessed as part of the standard of care for many cancers, and the results of these biomarker tests are used to more precisely classify tumors, select effective treatments, and assess risk for other conditions. While biomarker assessment is the standard of care for many cancers, not all insurance plans reimburse for these tests, resulting in wide disparities between patients with different insurance plans.”

The Washington state bill was subsequently amended to be limited to stages 1, 2, 3, 4 cancer cases or in cases of brain cancer.

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