Out-Of-Network Anesthesia: Latest Developments

It is an oddity of human nature that we are drawn to television programs that continue to extend the story, where succeeding episodes build upon the plotlines of the last. What used to be relegated to the day-time soap operas of the sixties and seventies became commonplace in nightly dramas from Dallas to Downton Abbey. Remarkably, that soap opera feel can occasionally be found in the twists and turns of the federal rulemaking process.

A couple of years ago, the U.S. Congress passed the No Surprises Act (NSA), which was designed to put an end to patients receiving surprisingly large medical bills from providers who turned out to be non-participating with the patient's insurance. The out-of-network status allowed—and, in the eyes of some, compelled—these providers to bill the patient a balance amount representing the full group rate. The NSA, which became effective at the beginning of this year, was meant to put an end to all that. It was further written in such a way that both parties—the provider and the insurance company—would receive fair and equitable treatment when it came to the issue of reimbursement for services.

Medical Melodrama

As we've previously pointed out in other alerts, the first bit of drama in this No Surprises saga came about when the Centers for Medicare and Medicaid Services (CMS), along with other federal agencies, produced three sets of regulations last year intended to implement the broad provisions of the NSA. The problem is that these regulations, in the opinion of many, removed the fairness that Congress intentionally built into the act concerning reimbursement by forcing government-approved arbiters to side in favor of the insurance companies. Specifically, in the event of a disagreement between the parties over payment, an independent dispute resolution (IDR) process would be initiated. The regulations essentially directed the IDR arbiter to base the ultimate payment determination on the median contracted rate by that payer relative to a particular service in the provider's geographic area (officially termed "the qualifying payment amount" or QPA). This provision led some payers to simply reduce their contracted rates for services across the board so that they could ultimately lower their QPA. Providers were not happy.

Because of the perceived inequity of these regulations, several health entities and lobbying organizations brought suit against the federal government, stating that the regulations were in direct contravention to the spirit and wording of the NSA. A federal district court in Texas agreed with the complainants, and the section of the regulations pertaining to the use of the QPA as the determining factor was vacated. In other words, the most odious provisions of the regulations, from the providers' perspective, were deemed null and void. In the meantime, two major events occurred:

• 1. On February 28, the U.S. Department of Health and Human Services (HHS) announced that it was withdrawing the section of regulations at issue, but then turned around and appealed the Texas court ruling to the U.S Fifth Circuit Court of Appeals in New Orleans, which has legal jurisdiction over Texas, among other states.
  
  
• 2. On March 3, 2022, CMS indicated that the IDR portal would not be launched until the new rules were issued. Nevertheless, even though these new rules have still not been produced, CMS inexplicably opened up the IDR process and portal just last month.

Anyone feeling like a pinball about now?

The Latest Plot Twist

It is now being reported that, earlier this month, the Fifth Circuit granted the government's request to put a "hold" on its filed appeal, pending CMS' release of an updated surprise billing final rule, which is expected to be published this summer. The reaction to this latest plot twist from the affected parties was swift and positive. The American Society of Anesthesiologists (ASA) reported the following:

The American College of Emergency Physicians (ACEP), the American College of Radiology® (ACR®) and the American Society of Anesthesiologists (ASA) call the hold a step in the right direction. The groups will work with the Centers for Medicare and Medicaid Services, other federal agencies, legal partners and patient advocates to ensure the final rule complies with the text and spirit of the No Surprises Act and the Texas court ruling.

The ASA press release went on to state:

ACEP, ACR and ASA are pleased that the government is not wasting taxpayer resources to pursue its appeal of the U.S. District Court for the Eastern District of Texas decision at this time. The court's opinion affirmed that the No Surprises Act did not provide the 'give-away' to insurers enabled by the dispute resolution process published in the Interim Final Rule.

It should be noted here that ACEP, ACR and ASA filed suit in the U.S. Court for the Northern District of Illinois, and those suits are moving forward. The decision to file these actions was due to these organizations' belief that "the interim final rule's IDR process would enable insurers to raise profits by narrowing medical networks, which would deny patients their choice of providers and could delay diagnosis and treatment of illness and injury." According to reports, the judge in that case issued a stay, pending any government challenge to the Texas court ruling.

In summation, we are still lingering in the land of Limbo as we await the final resolution of these legal and regulatory proceedings. In the meantime, providers may utilize the government's IDR portal process to register their disagreements over case reimbursement relative to their out-of-network services; and they can do this without the specter of the QPA—at least at this juncture—being the primary determinant in payment adjudication.