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Lawmakers push for surprise billing changes as law takes effect

Ariel Cohen, CQ-Roll Call on

Published in Health & Fitness

•Association of Air Medical Services.

Court decisions could potentially come in the next few months, said Katie Keith, an associate research professor with the Georgetown University Center on Health Insurance Reforms. Plaintiffs are pushing for an expedited briefing and decision, with court arguments scheduled for February in several of the cases.

“Clearly, the tactic was to try to jam the administration by filing these [lawsuits] right before the holidays, in addition to the patient and consumer groups who normally would be filing amicus briefs in defense of the No Surprises Act and its rule-making,” said Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy.

The groups suing are arguing for national injunctions against the administration’s arbitration guidance and asking the courts to rule by March. Even though the surprise billing ban is already in effect, the first instances of arbitration under the law may not occur until March at the earliest because of the law’s built-in waiting periods and policies.

Many experts anticipate that the longer the surprise billing ban is in place, the less often payment disputes will go to arbitration. Over time, insurers and providers will likely begin to rely on past payment precedent rather than going through a somewhat cumbersome arbitration process.

“It will take some time to form those expectations, and the current set of lawsuits may be particularly relevant to that process,” noted Ben Ippolito, an economist who focuses on health policy for the right-leaning American Enterprise Institute.

 

The outcome of the cases will largely rely on how the courts interpret the Chevron doctrine, a Supreme Court precedent that says courts must defer to government agencies when a law’s language is unclear or ambiguous.

If the providers prevail in court, the Biden administration likely will have to rewrite the vacated part of the rule through the formal notice-and-comment rule-making process in compliance with the court’s ruling.

This process could take a long time, and the uncertainty over how disputed out-of-network charges are paid for could continue for several years, noted Spencer Perlman of Veda Partners, an investment advisory firm.

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(Mary Ellen McIntire contributed to this report.)

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