Massachusetts Health & Hospital Association

Federal Courts on Surprise Billing, Insurer Merger

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> Court Nixes Part of Surprise Bill Rule
> DOJ to Fight Insurer Acquisition
> Caring for the Caregiver
> MHQP’s Clinical Guidelines
> Prior Authorizations
> Cybersecurity
> Therapeuitics


Administration Puts a Thumb on Scale in No Surprises Rule

A U.S. District Court judge in Texas has ruled that parts of the regulation the Biden Administration wrote to implement the federal No Surprises Act go against what Congress intended, create an uneven playing field in favor of health insurance companies over healthcare providers, and must be vacated.

The bipartisan No Surprises Act protects insured patients by limiting the amount they have to pay for emergency care provided by an out-of-network provider. The bill that Congress passed also outlines how payments by insurers to out-of-network providers should be determined. Congress instructed the administration’s rule makers drafting the implementing regulations to create an “independent dispute resolution” (IDR) process to settle provider-insurer payment disputes. And then Congress wrote specifically what that IDR process should consider.

First, the law states, the mediator should look at the “qualifying payment amount” (QPA) for the service at issue – that is, essentially, the median rate in the area for the service. Then, Congress outlines a whole series of other considerations, including the level of training of the provider, the provider’s market share, the acuity of the patient, and the teaching status of the facility, among other facts.

The healthcare community, including MHA in its discussion with the Massachusetts delegation, advocated strongly for including the full range of considerations in the IDR process, arguing that relying primarily on the QPA is unfair because insurance companies effectively set the “qualifying payment amount” because it is based on the rates they negotiated. The QPA also ignores the fact that many providers incur costs above that average rate for a variety of reasons associated directly with the quality of care provided and the outcomes achieved.

Yet, when they drafted the regulations, the Administration’s Secretaries of Health & Human Services, Treasury, and Labor – the defendants in the Texas case – said the IDR arbitrator must select the proposed payment amount closest to the QPA.

“As the Departments explained when issuing the Rule, the Rule effectively creates a ‘rebuttable presumption’ that the amount closest to the QPA is the proper payment amount,” U.S. District Court Judge Jeremy Kernodle wrote in his 35-page decision. “… Rather than having an arbitrator consider all statutory factors as provided by the Act, Plaintiffs argue, the Rule puts a substantial thumb on the scale in favor of the QPA.”

Because the rule makers veered so far from what Congress intended – and because the Administration did not follow the Administrative Procedure Act’s notice-and-comment-period requirements for the rule it issued – Judge Kernodle vacated the parts of the rule dealing with the IDR process.

Representative Richard Neal (D-Mass.), who chairs the House Ways & Means Committee and was instrumental in drafting the No Surprises Act, hailed the court’s decision. In a joint statement with Ways & Means Ranking Minority Member Kevin Brady (R-Tex.), Neal said, “Yesterday’s decision affirms that the No Surprises Act, as written, will continue to protect patients but must swiftly be implemented according to the letter of the law to ensure fairness in resolving surprise medical billing disputes. A level playing field is essential. Processes that tip the scales towards either party are untenable, and will result in worse outcomes for patients.”

Justice Department Doesn’t Like Big Insurer Deal

UnitedHealth Group’s (UHG) attempt to purchase Change Healthcare in a $13 billion deal ran into a big roadblock last week when the U.S. Department of Justice (DOJ) filed an antitrust suit to block the merger.

UHG owns the big health insurance company, UnitedHealthcare, as well as the technology company, Optum. With the merger, UHG hoped to incorporate Change Healthcare into Optum. The tech companies control and process the data that insurance companies use to determine reimbursements, claims, revenue cycle decisions, and clinical decision support services.

Hospitals have been adamantly opposed to allowing an insurance company to acquire a previously independent company that controls the data used to set payment rates. In March 2021, the American Hospital Association wrote to DOJ, saying, “Change’s independence from payers and its function as an ‘honest broker’ is another critical element of competition. The loss of a key independent competitor that is similar in size to Optum in these essential services will likely result in higher prices for providers and in lower quality clinical outcomes for patients.” MHA also wrote to oppose UHG’s action.

DOJ agreed with those concerns and filed suit in federal court on February 24, arguing that the merger “threatens to reduce competition among U.S. commercial health insurers, thereby harming health insurance customers (employers) and their individual members, all of whom rely on competition between United and its rivals to keep healthcare affordable.” UHG said it would vigorously fight the DOJ action.

Putting Caring for the Caregiver Report Into Action

Since MHA released the landmark Caring for the Caregiver Task Force Report last March, the healthcare community has been implementing a range of its recommendations – even in light of the pandemic that has placed stresses on the healthcare workforce as never before.

Task force membership consisted of representatives from hospitals, behavioral health, home care, secondary education, community providers, patient and family advocacy, government and independent regulatory organizations, nursing and physician organizations, insurers, and labor and nursing unions. Separate workgroups tackled four focus areas, identifying challenges and best practices relating to: safety of workers (including prevention from physical, mental, and emotional harm); engagement (fostering a supportive and productive workplace culture and environment); wellbeing (assisting caregivers with physical, emotional, and financial health, and with fostering a sense of fulfillment in their work); and workforce development (including advancing the skills of the workforce, creating a pipeline for new and existing workers, and deploying staff in a manner that is most optimal to care delivery).

MHA has assisted the healthcare community in the four focus areas by, among other actions, creating a series of educational webinars that cover many of its themes, as well as holding regular sessions with its standing membership-staffed Healthcare Safety and Violence Prevention Workgroup, and Workforce Wellbeing Workgroup, among other system-wide groups.

Clinical Guidelines Stress Health Equity

MHQP has released updated Clinical Guidelines for 2022 – the document that provides clinicians with the evidenced-based care recommendations that should be consistently applied for different patient groups.

The guidelines outline the discussions clinicians should have with all patients on various conditions, as well as the age-specific patient-doctor discussions. MHQP has produced guidelines for adult preventive care, pediatric preventive care, and perinatal care, as well as immunization schedules, and adult and pediatric asthma action plans.

For the past two years, MHQP has reviewed and updated its guidelines with a special focus on health equity as a key goal, recognizing that clinical guidelines drive practice. In issuing this year’s guidelines, MHQP wrote, “Although we have always included risk factors to encourage risk-based early detection efforts, last year we incorporated a health equity lens to identify subpopulations that are disproportionately at-risk of certain conditions, diseases, and cancers, considering both biological pre-dispositions and social determinants of health.”

DOI Continues Halt on Prior Authorizations

The Division of Insurance has extended the ban on insurance companies requiring prior authorizations for patients being admitted to acute care, behavioral health, and post-acute care facilities care.

Specifically, for the next 90 days (until May 16), health insurance companies must continue to forego prior authorization reviews for any scheduled surgeries and admissions to acute care, behavioral health, and post-acute care facilities. Providers must notify the insurer within 24 hours of the admission and provide updates at least every five days. For the next 60 days (April 16), insurers cannot conduct concurrent or retrospective review of the first five days of any post-acute stay following a transfer from an inpatient behavioral or non-behavioral health facility. Any prior approved scheduled surgeries that were postponed due to the pandemic will not require a new prior authorization when provided within 120 days of February 15. And for the next 60 days, insurers are also expected to continue modifications to expedite network credentialing for all healthcare practitioners for both new and modified credentialing applications.

MHA and its members had in recent weeks informed DOI of the continuing challenges of getting patients into and through the healthcare system – a process that is often made even more difficult by the insurer administrative processes.

The Increased Focus on Cybersecurity

The healthcare community, among other sectors of the economy, was on high alert as a result of Russia’s invasion of Ukraine. A “shields up” warning went out to all healthcare entities, warning against Russian-agent cyber attacks. The federal Cybersecurity and Infrastructure Security Agency (CISA), which has been cautioning about increased cyber attacks over the past two months, said in its shield up bulletin, “This current environment requires us all to be laser-focused on resilience.”

State Has Ample Supply of COVID-Fighting Therapeutics

The Department of Public Health last week stressed once again the availability of therapeutics to assist those with COVID-19, who are at elevated risk of sickness. The state has ample supply of oral therapeutics, as well as infusion therapeutics to help people recover from COVID-19, and avoid serious sickness and/or hospitalization. The various therapeutics require prescriptions and are available all across the state. View this map to find treatment locations.

“We are fortunate that there is now an ample supply of therapeutic treatments available widely across the commonwealth,” said Patricia Noga, R.N., MHA’s vice president of clinical affairs. “The healthcare community views these therapeutics as a part of routine COVID care and hospitals are strongly encouraging clinicians to use them to the greatest extent possible.”


John LoDico, Editor