Hart Health Strategies provides a comprehensive policy briefing on a weekly basis. This in-depth health policy briefing is sent out at the beginning of each week. The health policy briefing recaps the previous week and previews the week ahead. It alerts clients to upcoming congressional hearings, newly introduced bills, regulatory announcements, and implementation activity related to the Patient Protection and Affordable Care Act (PPACA) and other health laws.


Congress Passes CR; Impasse Remains on Debt Limit, Infrastructure, and Reconciliation

The federal government will remain open following passage of a continuing resolution (CR) on September 30, the final day of the fiscal year (FY). The stopgap spending bill (H.R. 5305) funds the federal government at current levels through December 3. The measure also provides emergency funding for disaster relief and Afghan refugee resettlement and extends current restrictions on fentanyl analogues through January 28, 2022. The government’s authority to prosecute illegal possession of such substances was currently set to expire on October 22. The funding package passed both chambers with bipartisan support.

The government funding measure does not address the debt ceiling, which must be raised or suspended in the coming weeks to avoid a U.S. default. Treasury Secretary Janet Yellen warned lawmakers in a letter last week that her department will exhaust its extraordinary measures if Congress has not acted on the debt limit by October 18, warning that a failure to act will result in a financial crisis and recession. Democrats had hoped to address both government funding and the debt ceiling in a single vehicle, but Republicans have vowed to vote against a clean debt limit suspension or increase while Democrats have ruled out using the latest reconciliation package.

Passage of the bipartisan infrastructure framework has stalled because of Democratic disagreements over the latest reconciliation package. The House of Representatives had planned to vote on the $550 billion infrastructure bill last week, but the vote has been postponed indefinitely because it lacked the necessary support for passage. Progressive Democrats have pledged to oppose the infrastructure legislation until agreement has been reached on the details and passage of the Build Back Better reconciliation measure. Sens. Joe Manchin (D-W. Va.) and Kyrsten Sinema (D-Ariz.) oppose the total size of the reconciliation bill as it currently stands at $3.5 trillion. Following discussions between President Joe Biden and the two moderate senators on Friday, the upper limit of the social spending plan is now expected to land between $1.5 trillion and $2.3 trillion. It remains unclear whether there is enough support for the inclusion of certain health care related measures, such as the current versions of Medicare and Medicaid expansion and drug pricing provisions.

Latest Surprise Billing Regulation Released

The Biden administration released regulations last week outlining how the No Surprises Act’s independent dispute resolution (IDR) process will work to resolve billing disputes between providers and insurers. The law, which applies to items and services provided under plans or coverage beginning on January 1, 2022 or later, aims to avoid patient receipt of surprise medical bills and provide a resolution process for disputes between plans and providers over payment. In the case of a billing dispute, patients can only be billed for the amount for which they would be responsible if the care had been delivered by a provider at a facility in their insurance network. This latest interim final rule details how dispute resolution process will work at the federal level for disputes that are not governed by state law or regulation.

As part of the federal IDR process, under the statute, arbitrators must consider rates paid for the same service in an area, the training and experience of the health care provider, the market share held by providers and payers, the complexity of a patient’s case, certain facility factors, and whether providers and payers have made good faith efforts to contract with each other. They are prohibited from considering usual and customary rates or payment rates by public programs (i.e., Medicare and Medicaid). The rules released last week create an IDR framework where the qualifying payment amount (QPA) – based on a health plan’s median contract rate for similar services in a geographic area – will be relied on as the primary benchmark upon which billing disputes are settled (when eligible for the federal IDR process). The Independent Dispute Resolution (IDR) entities that will conduct payment determinations will be certified on a rolling basis; applications are due by November 1. The rule also details requirements for providing cost estimates to uninsured individuals and for the external review process for individuals to dispute denied payment for some types of claims. The agency released two fact sheets on the rule, one on requirements related to surprise billing, and another on “what you need to know” about the administration’s actions to prevent surprise billing. The administration also released a fee guidance for the IDR process, specifying the allowable fees that certified IDR entities will be able to charge in 2022, as well as the administrative fee that parties to a dispute must pay to undergo the dispute process.

The administration is expected to continue to release regulations as necessary to implement the No Surprises Act. While House Energy and Commerce Chair Frank Pallone (D-N.J.) and Senate Health, Education, Labor, and Pensions (HELP) Committee Chair Patty Murray (D-Wash.) applauded the rule for establishing “a fair payment resolution process between providers and insurers while finally taking patients out of the middle,” others such as Rep. Brad Wenstrup (R-Ohio) argued that the rule is not in keeping with congressional intent. “This HHS Second Rule on surprise billing is a disaster for patient access. Congress was very clear that we did not intend to create a de facto benchmark for negotiations when creating the arbitration process...If unchanged, this rule will disincentivize insurance companies from keeping providers in their networks, limiting care for Americans, and threatening the health and safety of our nation,” Wenstrup stated.

A bipartisan group of 97 representatives previously sent a letter to the agencies stating, “To match Congressional intent, your implementation of the law should ensure an IDR process that captures the unique circumstances of each billing dispute and does not cause any single piece of information to be the default one considered.”

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