Suit Seeks to Overturn NSA Patient Protections

The new suit seeks to repeal the prohibition on balance billing patients for certain out-of-network services.

Last week we reported on the lawsuits related to the No Surprises Act (NSA) that are focused on the Biden Administration’s current policy on the amount providers should be reimbursed for certain emergency and non-emergency out-of-network services.

As mentioned last week, we should get a sense of what the court feels about those lawsuits in the next week or so, as briefings have wrapped up in two of the four cases. Again, these four lawsuits are only narrowly focused on what the provider should be reimbursed for the particular out-of-network claims outlined in the No Surprises Act.

This week, however, we’ll talk about another lawsuit related to the No Surprises Act, brought by a Dr. Daniel Haller and Long Island Surgical. This New York lawsuit, filed on New Year’s Eve, the day before the No Surprises Act took effect, seeks to overturn the whole principle behind the No Surprises Act. That is, the Haller lawsuit seeks to repeal the prohibition on balance billing patients for certain out-of-network services.

So far, no court activity has happened on this Haller lawsuit; the plaintiffs have not served the government yet. But let’s put a pin in that for now, and wait to see if this case gets any traction in the months to come.

Before we leave the No Surprises Act lawsuits behind, readers may recall that so far, the regulations implementing the Act have been interim final rules. With interim final rules, the government has the ability to publish final rules that skip over proposed rules, in which requirements are proposed and can be changed based on public comments.

This means that the two regulations that the government published on the No Surprises Act last year as interim final rules essentially are final rules, and there is no requirement that the government publish another, let’s call it a FINAL final rule, based on any public comments from the public.

In fact, this is an issue that the lawsuits have brought up: they argue that the government should have published a proposed comment period first, for such a significant piece of legislation.

That being said, in a motion filed in one of the NSA lawsuits, the Biden Administration says that it will issue a new No Surprises Act rule no later than May 2022, and that that rule could roll up the requirements proposed in the first two interim final rules..

Before we leave the No Surprises Act, the next Centers for Medicare & Medicaid Services (CMS) Special Open Door Forum for providers will be held this Wednesday, Feb. 23, at 2-3 p.m. EST. The CMS session will provide Information for providers on balance billing disclosure requirements, continuing care for patients after a plan terminates the provider’s contract, and some information on providers’ roles in keeping their information in directories accurate. To participate in the call, dial 1-888-455-1397 and reference conference passcode 5109694.

Moving more locally, states are quickly dropping their mask mandates, or, in the very least, setting dates in the coming weeks when those mandates will be lifted. The only state that has not planned to lift its mask mandate now is Hawaii. States are dropping their mandates in response to the dramatic decrease in COVID-19 cases across the much (but maybe not all) of the country.

Last week, a Health Affairs study of nearly 400 counties in the U.S. found that COVID incidence in counties that mandated masks declined by nearly a quarter, compared to counties without mask mandates, over four-week periods.

For counties with larger cities, the incidence of COVID declined by nearly 30 percent in masked counties, compared with unmasked counties.

In other words, although mandates are disappearing, it is clear that they significantly decreased the number of people with COVID.

Programming Note: Listen to Matthew Albright’s live reports on federal legislation Mondays on Monitor Mondays 10 Eastern, sponsored by Zelis.

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Matthew Albright

Matthew Albright is the chief legislative affairs officer at Zelis Healthcare. Previously, Albright was senior manager at CAQH CORE, and earlier, he was the acting deputy director of the Office of E-Health and Services for the Centers for Medicare & Medicaid Services.

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