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Ed Gaines

@EdGainesIII

Mar 8

1/While the headline is attention grabbing to be sure (see link below in #2), let's review the facts as facts are stubborn things.

POTUS signed the #NoSurprisesAct (NSA) near the end of his first term on Dec. 27, 2020, and the prior administration had one full year to implement the law which was effective 1/1/22. Now, my fellow tweeps, I've been doing this awhile now. In those 3+ decades, I count on one hand the number of times a federal court has declared regulations issued by HHS invalid. Under the now over-turned SCOTUS precedent known as "Chevron" (opinion written in the mid '80s) or the "Chevron Deference Rule", over turning regulations was exceedingly difficult, due to the legal standard known as "rational basis". The test was whether the regs had a "rational basis" under the statute which was a very low bar for the federal agencies to achieve.

W/ due respect to the official quoted in the CNN piece, the facts as laid out below all occurred during the prior administration and when, to his comment, his agency, the Center for Consumer Information and Insurance Oversight (CCIIO) (created under the ACA for the feds to regulate health insurance which had prior to the ACA been the province of the states), was fully staffed.

Fact 1: Due to the prior administration's attempts (as the TX federal judge said) to "put their fingers on the scale of justice" in favor of the health plans and contrary to the plain language of the NSA, @texmed, the UT Tyler Regional hospital & Dr. Adam Corley filed 4 successful cases against the rules written by the prior administration which were overturned by the fed. district court, even prior to the SCOTUS reversal of Chevron. TMA I and IV were won at the lower court & not appealed and TMA II was won on appeal, while the en banc hearing request on TMA III remains outstanding today.

2/ Fact #2: The prior administration estimated that there would be approximately 17,000 independent dispute resolution (IDR) cases filed under the NSA nationwide, despite that in one state (TX) in its first year of their state IDR process the number was several times that level. The official total in '22 was 200,000. 600,000 in '23 & 1.31M in '24. So, CCIIO and the prior administration under resourced the NSA IDR process from the beginning--that is completely on them.

Fact #3: After years of advocacy by the physician community (@ACEPNation & @EDPMA have written over 20+ plus letters and official comments to the myriad of regulations, re-written regulations (due to the successful TMA cases and FAQs issued by CCIIO), in Q4 of '23 CCIIO issued a proposed rule known as the "IDR Operations Rule". CCIIO extended the comment period until the end of Jan. '24, so we and others commented again. The proposed rule has many positive changes that would make the IDR process more efficient, less expensive and overall more effective for all parties concerned. Throughout '24 we waited and waited for the final rule to be issued and it never was issued.

3/ Fact #3: @ACEPNation @EDPMA provided the prior administration & CCIIO tens if not hundreds of examples where the health plans were not complying w/ federal law mandating that they pay the winning party in IDR within 30 days of the IDRE determination. Even more importantly, we provided many dozens of examples where the health plans had reprocessed the claims after losing the IDRE determination and foisted additional costs on the Pt for the liability that was determined to be their liability--completely gutting the Pt protections of the NSA. Discussions with CCIIO going back 2-3 years and evidence demonstrated the problem. The House Ways and Means Committee had sworn testimony from a physician and hospital administrator regarding the non-payment issue. @RepGregMurphy and bipartisan colleagues responded with a new bill to penalize the health plans for noncompliance. Multiple formal complaints were filed with Mr. Grant's agency and very little was done. At @EDPMA met with CCIIO, HHS, Treasury, Labor and OPM in mid November 2024 at our request to reiterate that they issue the IDR operations rule and address the health plans non-compliance with federal law.

In December 2024, CCIIO issued revised FAQs that reminded the health plans that they had to comply with federal law and pay, and not to increase the patient cost sharing. While thankful for that issuance, CCIIO showed little interest beyond that to address our issues going over years.

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Ed Gaines

@EdGainesIII

Mar 21, 2024

1/Great to hear and I'll be happy to share "1st principles" for TPAs but unfortunately cannot share contracts, those are proprietary to clients & they pay for our expertise there. To the community, let's provide your suggestions here or separately to Mr. Cuban recognizing that most of us including me have day jobs...so let's get started.

2/A couple of charts to begin the discussion. @FAIRHealth is a non-profit database of health plan allowed amounts w/ >50B in charges & allowed amounts. It was created as a result of the class action settlements vs. @UHC & other health plans regarding the "Ingenix database" over a decade ago. The #NoSurprisesAct was effective as 1/1/22, banned out of network (OON) balance billing & established an independent dispute resolution (IDR) process for clinicians to resolve their OON reimbursements. This chart is for an ~4.5 yr. period, both pre-NSA & post-NSA. Clinician charges either remained static or increased during this period. In network allowed amount declined -14% & OON allowed amount declined ~-10%. This naturally caused clinicians to enter the NSA IDR process in response. Articles on health plans "weaponizing" the NSA are plentiful, including @BlueCrossNC @BCBSTN @Cigna.

3/ Here are 2 of more than several examples of health plans "weaponizing" the #NSA. So among the "1st principles" is "Do not weaponize the NSA". A few more charts will describe why. Also note that a federal district court in Tyler, TX known as "The TMA cases" in 4 separate lawsuits has struck down NSA rule making by 3 depts. of the federal administration. HHS, DOL & Treasury were found to attempt to create an unlevel playing field where Congress intended the playing field to be fair. Despite an unlevel playing field in '23, CMS' own data (see the link to the CMS report below) shows that clinicians won 77% of IDRs vs. health plans in Q1 & Q2 '23.

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Ed Gaines

@EdGainesIII

Nov 29, 2023

1/ From #RSNA2023 presentation by @reh3md, the issue is well captured by this @AmerMedicalAssn graph showing that physicians are the only ones that do not receive an CMS $ update of some kind (may not be full inflation) but hospitals, ASCs, SNFs et al receive positive updates:

2/ Dr. Heller's next slide is specific to #Radiology #RVUs & the #Medicare negative update above would be added to the RVU cuts. The bottom line as he said @RSNA2023 is that the best that Radiology has done is "0%" in the past 15 yrs. RVU impacts on other specialties vary.

3/ The answer to the lack of #Medicare updates for physicians writ large is advocacy & docs being active in the national, state & local specialty organizations. @ZotecPartners we have what we call "1 click" advocacy where it takes less than 1 min. to send an email--check it out

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Ed Gaines

@EdGainesIII

Feb 22, 2023

1/ What’s the urgency re: #NoSurprisesAct dispute resolutions decisions (IDRs) returning immediately you ask? 1st, amicus briefs are important but they’re but 1 tool in the tool box. “We” need to do more, to wit: for EM docs the decline in post #NSA reimbursements is >32% so….

@EDPMA

2/ IDR is the main remedy to the EM Docs who have (willingly) the #EMTALA & moral duty to provide care regardless of the in network status; 2. @EDPMA survey data on the +30% decline in pre vs post NSA reimbursements is 10s of 1000s of claims. 2 paraphrase the movie “Patton”, how

@ACEPNow

3/will we all answer the question “where were you & what do you do when independent physician groups’ independence suffered an accelerate decline?” To borrow a line from Netflix doc “Full Swing” (attributed to Tiger) “ Don’t get bitter, get better” @ACEPNow @ACRRAN @ASALifeline

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Ed Gaines

@EdGainesIII

Oct 20, 2022

1/Big congrats 2 the Physicians Advocacy Institute, American College of Emergency Physicians, American College of Radiology, American Society of Anesthesiologists, American Hospital Association, American Medical Association, and The Emergency Department Practice Management....

@EPDMA

2/ Association for filing w/in a very short timeline (@EPDMA found out last Friday that 10/19/22 was the deadline for amicus briefs--FUN weekend!) "friends of the court" (amicus curiae) briefs in support of @texmed @AdamCorley Motions for Summary Judgment to have the Aug. 2022...

@AmerMedicalAssn

3/ NSA final rule vacated, just as the court had previously ruled in Feb. 2022 with the Q4 2021 final rule--with @AmerMedicalAssn PAI coming in with over 30 state & federal medical societies joining to oppose yet another ill fated attempt by HHS to set the QPA as a benchmark....

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Ed Gaines

@EdGainesIII

Sep 14, 2022

1/ Here's a call to action for the bill to address the Medicare fee schedule cuts--Tell Congress: Fix Medicare Reimbursement!
Clinicians are working harder than ever to recover from the pandemic—but continually facing cut after cut, and inflation is on the rise......

2/Insurers, who posted record-breaking pandemic profits, continue to raise premiums and lower reimbursement rates to clinicians. Additionally, across-the-board, sequestration cuts of -2%, just hit our clinicians in the first half of 2022.
January 1, 2023, approximately.....

3/ -10% plus, in Medicare cuts will impact hospital-based clinicians. We need Congress to enact new legislation to STOP THE CUTS!
•-4.42% - Medicare conversion factor (CF) cuts were proposed by CMS’ 2023 Medicare Physician Fee Schedule (MPFS).
•-4% - Pay-As-You-Go (PAYGO) ...

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