Washington Wire: February 2022

Court strikes down portions of surprise medical billing rule, but patient protections remain in effect.

Last month HFA reported on new federal patient protections against “surprise” medical billing that went into effect on January 1, 2022. Under the new law and regulations, health care providers can no longer bill patients for amounts above their regular in-network cost-sharing for (a) most emergency care, or (b) care from an out-of-network provider delivered at an in-network facility. We also reported that the Texas Medical Association had filed a lawsuit challenging the regulations, and that HFA had joined with a dozen other patient advocacy groups to file a “friend of the court” brief defending the rules.
February brought new developments in the case. On February 23^rd, Judge Kernodle (U.S. District Court for the Eastern District of Texas) issued a ruling in favor of the Texas Medical Association. He found that the arbitration process laid out in the regulation (i.e., the process provided for resolving reimbursement disputes between health care providers and insurers) tilted too far in favor of insurers. The judge also found that the government’s rulemaking violated notice-and-comment requirements under the Administrative Procedure Act. For these reasons, he vacated all challenged provisions of the regulation.
It’s important to note that the patient protections of the No Surprises Act remain in effect, despite the court ruling. Prohibitions against balance billing still apply with respect to emergency care, and to out-of-network care at an in-network facility. It’s also important to note that the Texas case is only one of several lawsuits concerning aspects of the surprise billing rules and will likely be appealed. HFA will continue to provide updates on this developing issue.

Quick Hits:

• On February 23, 2022, the U.S. Department of Health and Human Services released a new report that shows historic gains in health care coverage access and affordability among Black Americans. The February HHS report shows that the uninsured rate among Black Americans under age 65 decreased by 40% in the years since implementation of the Affordable Care Act (2011-2020). But the report also acknowledges that crucial disparities in access to care persist for Black Americans. The percentage of Black Americans who lack insurance, who struggle to afford health care, and who say they have no usual source for care is still higher than White Americans. The HHS report underscores how 12 states’ refusal to expand Medicaid coverage to low-income adults reinforces disparities. Almost 1 million more Black Americans would be eligible for coverage if those 12 states opted to expand their Medicaid programs, according to the report.

The HHS report suggests that recent Congressional and Administration actions to expand coverage (e.g., providing enhanced ACA premium subsidies and enrollment opportunities – initiatives that occurred in 2021, outside the period studied in the report) may help reduce racial disparities in health care access further. HFA and allied advocates are asking Congress to extend the enhanced premium subsidies beyond 2022, and to provide a path to coverage for low-income individuals living in states that have declined to expand Medicaid.

• On February 18, 2022, President Biden issued a declaration that, because the COVID-19 pandemic continues to cause significant risk to public health, the national emergency declared in March 2020 will continue in effect beyond March 1, 2022.

This Presidential proclamation of a national emergency is different than – but a necessary prerequisite to – the 90-day declarations of a public health emergency that have been issued and renewed by HHS since the start of the pandemic. The HHS declarations, in turn, allow federal health agencies to keep pandemic-related waivers and flexibilities in place.

• A new report issued by the Georgetown University Center on Children and Families warns that 6.7 million children may be at risk of losing coverage when the public health emergency ends. States have paused their Medicaid eligibility redetermination processes since March 2020 but will resume normal operations when the PHE ends. At that point, children could lose coverage because their families are now above income for Medicaid; or because they have aged out of coverage (in non-expansion states); or for procedural reasons (family’s current contact information not on file, bureaucratic error, etc.) HFA and allied patient groups have called on the federal government and on state Medicaid directors to take proactive steps to minimize procedural disenrollments and inform affected families of alternative pathways to coverage.
• The U.S. Centers for Medicare and Medicaid Services announced that a new Special Enrollment Period is now available to lower income consumers allowing them to enroll in Marketplace coverage any time, if eligible. Consumers who have an estimated annual household income at or below 150% Federal Poverty Level (FPL) in their state and who aren’t eligible for Medicaid/CHIP may be eligible for this SEP. One catch: consumers won’t be able to enroll through this Special Enrollment Period at gov until late March. Until then, consumers should contact the Marketplace Call Center at 1-800-318-2596 (TTY: 1-855-889-4325) for enrollment help.
• On February 15^th, the Senate voted to officially confirm Dr. Robert Califf as Commissioner of the Food and Drug Administration. Dr. Califf had previously served a brief term as FDA Commissioner in the Obama Administration.