This is interesting news, as many EMS providers have struggled with payers complying with outcomes of arbitration or mediation when an Independent Dispute Resolution (IDR) processes used. Some of the state-level patient protection from balance billing laws also include this provision. The report also highlights one of the many challenges with the current No Surprises Act, likely a factor in the Ground Ambulance Patient Billing Advisory Committee's (GAPBAC) recommendation that ground ambulance providers NOT be included in the act.
It's nice to see the coalescence of associations and federal agencies about the challenges with the No Surprises Act.
Click here for an overview of the GAPBAC recommendations to Congress.
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Federal departments, provider groups oppose HCSC in unpaid surprise billing lawsuit
By Noah Tong
Oct 8, 2024
https://www.fiercehealthcare.com/payers/vocal-opposition-hcsc-arises-unpaid-surprise-billing-lawsuit
Major medical associations and the federal government are voicing their opinions in a controversial No Surprises Act lawsuit.
The Department of Labor (DOL), Department of Justice (DOJ), American Hospital Association, American Medical Association, Federation of American Hospitals and the Texas Medical Association are all supporting air ambulance providers against Health Care Service Corporation (HCSC), under the Blue Cross Blue Shield Association umbrella.
Insurers are required under federal law to cover emergency services, even if the care is out-of-network, as is often the case in emergency situations. Health plans are often required to reimburse providers at a fair rate after going through a lengthy independent dispute resolution (IDR) process.
In the lawsuit before the Fifth Circuit of Appeals, provider Guardian Flight underwent the IDR process with HCSC for 33 air transports, but the insurer never paid up. A district court previously ruled in favor of HCSC, saying patients are not hurt by insurers’ inaction. The court said HCSC did not violate the Employee Retirement Income Security Act (ERISA) or No Surprises Act.
HCSC did not immediately respond to a request for comment. The insurer owed nearly $1 million in payments if it followed the IDR ruling.
“Truly an awful decision,” said Julie Selesnick, senior counsel at Berger Montague, in a LinkedIn post in August. “Why would an insurer ever pay an IDR award now?”
But on Oct. 4, the DOL and DOJ argued in an amicus brief that protecting a provider's ability to recoup payments is instrumental in protecting patients against surprise medical bills, as intended by Congress when it enacted the law. The agencies said because payment following the IDR process is “tantamount to mandatory plan benefits” plaintiffs should be allowed to invoke ERISA.
Last month, Rep. Greg Murphy, R-N.C., introduced the No Surprises Act Enforcement Act. The proposed bill enforces non-compliance penalties on health plans that already exist for providers.
No payments were made after the conclusion of the IDR process 52% of the time, a survey (PDF) of 48,000 physicians from the Americans for Fair Health Care found. In the other instances, 49% of payments were not made within the required 30-day window and 33% of payments were incorrect.
CMS previously said providers are winning (PDF) No Surprises Act arbitration cases against health plans at a 77% clip.
“As argued by the DOJ, the ability to enforce IDR determinations in court is but one more necessary ‘tool in the toolbox’ for clinicians to force the health plans to comply with the law,” said Ed Gaines, vice president of regulatory affairs and industry liaison for Zotec Partners, in a statement to Fierce Healthcare.
Leading provider organizations—the American Hospital Association, American Medical Association, Federation of American Hospitals and the Texas Medical Association—agreed with the government, arguing providers’ existence would be threatened.
“It gives insurers significant leverage to demand confiscatory discounts from out-of-network providers, as well as to exact across-the-board rate cuts from in-network providers, lest they be kicked out of network and not paid at all,” the organizations said in a joint amicus brief. “Both in- and out-of-network providers will thus find themselves perpetually underpaid or even uncompensated for their valuable services, and patients will lose providers and critical care as a result.”
