“That, to me, is the next big thing to keep an eye on,” Keith said.
The final rule could lay out the same arbitration process as the interim rule with a different justification, alter the process slightly or back down completely. CMS also hasn’t clarified how broad the rule will be—the agency has two interim final rules and one proposed rule on surprise billing waiting to be finalized.
But reverting back to a system where arbiters base decisions primarily off the median contracted rate would be difficult, said Helaine Fingold, a lawyer at Epstein Becker Green specializing in health insurance regulation and a former CMS regulator.
“At some point, even though they may have a policy goal, there’s also the goal of some predictability for stakeholders, and that’s not a small consideration,” said Fingold, who previously worked as a regulator at CMS. “I find it unlikely that they would use this [guidance] as a placeholder, thinking, oh, we’ll come back to our old approach as soon as we have the opportunity.”
With the dispute resolution claims portal now open, further changes to the process could be even more difficult to implement. A payment decision on a disputed claim needs to be reached within 30 business days after an arbiter is selected, and with providers and payers able to file claims starting last week, many claims will likely be resolved before CMS finalizes its rule on the process.
“There’s a point at which they need to make a decision and move on. We’re really past the point. We’re already in operation,” Fingold said.
Regardless of what route the administration takes with modifying surprise billing dispute resolutions, there will likely be more litigation, lawyers said. Several other lawsuits on surprise billing are also still open, including the air ambulance case.