On December 6, Ohio’s Joint Committee on Agency Rule Review (JCARR) declined to act on the Ohio Society of Pathologists (OSP) and the CAP’s concerns on the state’s adverse out-of-network rule (3901-8-17). The rule purportedly violates the legislative intent (HB 388) by applying the law’s applicability to all clinical laboratory services that are out-of-network. The CAP advocates for states to require health plans to have adequate networks of hospital-based physicians, including pathologists.

The OSP and the CAP argued the rule should be limited to out-of-network clinical laboratory services provided at in-network facilities. Additionally, the proposed rule’s requirement for written disclosure of out-of-network status prior to performance of clinical laboratory services was construed by the OSP and the CAP to not be contemplated in law. Both groups provided written and oral testimony also asserting the rule’s violation of JCARR’s criteria in which the proposal did not contain a complete and accurate rule summary in comparison to the rule’s Common Sense Initiative’s Business Impact Analysis.

Lori J. Elwood, MD, FCAP testified in opposition to the JCARR hearing to invalidate the rule due to the rule’s alleged violation of criteria in which the Department of Insurance (DOI) has or has not exceeded its statutory authority in the rulemaking process. Dr. Elwood said, “the Department of Insurance [has] instead proposed a rule that both transcends and violates Ohio's Out-of-Network law as it relates to clinical laboratory services. As such, this is the very scenario of rulemaking that JCARR was established to address and remedy.”

The OSP and the CAP were actively engaged in discussions with DOI and JCARR from the very beginning of the rulemaking process to rectify the apparent adverse impacts of the proposed rule. In November, both groups met with JCARR staff to express concerns on the proposed rule. Despite receptive discussions, the JCARR committee and the DOI decided to finalize the rule which will became effective on January 1, 2022.