This Week in Washington DC – July 3, 2021

From ACG Legislative and Public Policy Council Chair, James C. Hobley, MD, MSc, FACG

Happy Fourth of July weekend! ACG wanted to highlight some notable court cases around the country impacting ACG members and GI practices. As reported, the U.S. Supreme Court recently dismissed the latest challenge to the ACA. ACG is also monitoring other important cases impacting members and GI practices:

The U.S. Supreme Court also dismissed a legal challenge to a CMS’ “site-neutral” payment policy that reimburses off-site hospital facilities an amount for certain services similar to freestanding physician practices. This policy was implemented by the Centers for Medicare and Medicaid Services (CMS), as part of the CY 2019 regulation on outpatient hospital departments and ambulatory surgical centers. The American Hospital Association challenged this rule, alleging that CMS does not have the authority to implement this policy, but rather it’s the role of Congress. A federal district court agreed, but last summer, the D.C. Appellate Court sided with the Trump administration and overturned this ruling. The Supreme Court did not comment on its decision not to review the case. The Biden Administration also had asked the Supreme Court to affirm appellate court’s decision.

A federal district court in New Jersey recently ruled that a health insurer violated the Employment Retirement Income Security Act (ERISA) by a practice that is known as “cross-plan offsetting.” In cross-plan offsetting, the insurer withholds a payment under one plan in order to recoup an overpayment made on another plan. The court ruled that this practice violates the fiduciary duties provision of ERISA prohibiting taking any action adverse to the interests of plan’s participants. The court’s decision follows a 2019 U.S. Court of Appeals ruling that a plan’s documents cannot allow for cross-plan offsetting.

A case before the Illinois Supreme Court could threaten to effectively reduce the long-standing burden-of-proof requirements in medical negligence cases, according to the American Medical Association. After a jury found that four physicians and a hospital were not negligent in their care of a woman who came into the emergency department, an appellate court said the plaintiff should be given a new trial so that the jury can consider “proximate cause,” or link between the medical negligence and patient’s injuries.

On Thursday, the Department of Health and Human Services (HHS) and other agencies released an interim final rule entitled “Requirements Related to Surprise Billing; Part I.” The is the first regulation in an expected series of rules between now and January 2022 implementing provisions of the No Surprises Act, signed into law last year.

This IFR clarifies the Qualified Payment Amount (QPA) by specifying cost sharing calculations for emergency services provided by out-of-network emergency facilities and out-of-network providers, and certain non-emergency services furnished by out-of-network providers at certain in-network facilities. This IFR does not provide guidance on any independent dispute resolution process.

ACG is reviewing the regulation and will provide guidance to members. Click here for CMS’ fact sheet.