Biden Administration Staying Busy in 2024

As my colleague Matthew Albright reported in the last Monitor Mondays broadcast, while there isn’t going to be any sweeping federal healthcare initiative coming anytime soon, our industry isn’t exactly just kicking back as we enter this election year – and this week was a great example of that.

One of the splashiest stories this week was the Biden Administration’s new rule on prior authorization. The Centers for Medicare & Medicaid Services (CMS) issued a regulation that beginning in 2026 will require health insurers participating in federally sponsored plans like Medicare Advantage (MA), Medicaid, and Patient Protection and Affordable Care Act (PPACA) exchanges to respond to urgent prior authorization requests within 72 hours and standard requests within seven calendar days: a cut of 50 percent, in some cases. The insurers must also provide a specific reason for denying any request and will need to report metrics related to prior authorization publicly. 

This rule is over a year in the making, and was generally a bipartisan issue, particularly when it came to MA plans. While this is generally considered a win for providers who have been calling for such reform, the American Association of Health Plans (AHIP) also called it a step in the right direction and noted that the rule will improve the patient experience. Critics, however, have pointed out that this leaves out everyone who is not on a federally sponsored plan and also doesn’t cover prior authorization requests for prescription drugs.

The No Surprises Act (NSA) was also yet again in the news, as it emerged that insurers are being increasingly brought to court for allegedly making incomplete or untimely payments on arbitration awards under the Act’s independent dispute resolution (IDR) process. While frequent readers are well aware of the bumps in the road in implementing provisions of the NSA, particularly the IDR process, less has been heard about insurers’ role in the new process, until now. Several lawsuits are pending against some of the bigger insurers – particularly for interest, late payment penalties, and other fees associated with payment beyond the 30-day federally required time frame. Insurers argue that providers cannot file court cases to enforce IDR awards, but only complaints with CMS. CMS stated that it is “actively investigating and addressing (such) complaints and will not hesitate to use its authority…to ensure payments are made within the required time frame.”

Experts predict we’ll see more cases like this, but note that because these types of lawsuits are financially burdensome, providers or provider groups might be waiting until they have a large amount of unpaid IDR awards.

The American Healthcare Association’s (AHA) lawsuit against the U.S. Department of Health and Human Services (HHS) and its restrictions on website tracking was also recently in the news, with 17 hospital associations and 30 providers filing amicus briefs in support of the AHA. If you’ll recall, the lawsuit asked the court to declare that info collected by third-party web trackers (like Meta Pixel and Google Analytics) is not protected health information (PHI) and therefore not protected by the Health Insurance Portability and Accountability Act (HIPAA), as HHS’s Dember 2022 guidance had suggested. In their briefs, the groups noted that the tracking is integral to their work of providing healthcare to communities and maintaining online health information. They also suggested that the guidance provides an incentive for litigation against health systems with “no meaningful benefit to the public.” The lawsuit is still pending in Texas.

And finally, HHS appointed its new “Chief Competition Officer” (CCO) – a new role for the Department that was created to help implement the Biden Administration’s goal of lowering healthcare and prescription drug costs through increasing competition. The CCO will be responsible for coordinating, identifying, and promoting opportunities for competition in healthcare markets, and, as the Biden Administration continues to crack down on consolidation in healthcare, this individual will be working with the Federal Trade Commission (FTC) and Department of Justice (DOJ) on strengthening scrutiny of such activity.

It’s clearly been a busy few weeks for the Biden Administration when a narrowly avoided government shutdown was just one of the important stories to watch. It’s shaping up to be a busy year, and we’ll keep you updated.

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Cate Brantley, JD

Cate Brantley is a legislative analyst for Zelis. She has over 9 years of experience in both the public and private sector. Cate is licensed to practice law in the state of Oklahoma.

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