The surprise billing arbitration rules are here

Presented by Kaiser Permanente

PROGRAMMING NOTE: Morning Pulse won’t publish from Monday, Aug. 29, to Monday, Sept. 5. We’ll be back in your inbox on Tuesday, Sept. 6.

With Alice Miranda Ollstein, Megan Messerly and Ruth Reader

WELCOME TO MONDAY PULSE — Hey, everyone, it’s Megan Wilson, the health team’s lobbying reporter. I know it’s been a whole weekend for those of you who work on surprise billing issues, but health agencies putting out a final rule late on a Friday is serving Affordable Care Act implementation realness. And we love a good nostalgia moment, don’t we? (The trauma brings us together.)

Now, get your caffeinated beverage of choice and send your best news tips, K Street gossip and breakfast sandwiches to [email protected] and [email protected].

Driving the Day

LET’S GET INTO IT: SURPRISE BILLING ARBITRATION RULES FINALIZED — The Biden administration on Friday finalized regulations governing how surprise billing disputes are arbitrated, largely standing by its first iteration of the rules that roiled doctors and hospitals.

The final rules say arbitrators charged with settling disagreements between out-of-network providers and insurance companies must first take into account the median in-network payment rate for a service but may also consider other factors — including a provider’s training and experience, the market share of a medical facility or insurance plan in that geographic area, how many services the provider offers and whether it’s a teaching facility.

In its first iteration of the rules in October 2021, the administration said that arbitrators should consider the median in-network rate as the correct amount. Providers filed multiple lawsuits to challenge the reliance on that figure — saying it goes against congressional intent and tips the scales in favor of the insurance companies, which are in charge of calculating the rate. In one Texas case, a federal judge agreed.

While the administration allows arbitrators to consider other factors, the final rule reminds them to “evaluate the information to avoid double counting information that is already accounted for by the” median in-network rate.

Initial reactions from patient groups — including Families USA and the American Heart Association — have been positive. However, the ERISA Industry Committee, an industry association for group health plans, said the administration had “watered down” the arbitration requirements.

Since the rules popped so late on an August(!) Friday, many organizations are still poring over the 146-pages of rules — and I’m hearing that some of y’all huddled over the weekend to discuss them. (Shoot me a note if you’ve got the goss about what comes next.)

Pharma Moves

CH-CH-CH-CHANGES AT PHRMA — The drugmakers’ top industry group is going through some Democratic staff shuffles, writes yours truly. Debra DeShong, the top Democrat at the Pharmaceutical Research and Manufacturers of America, is out. Mike Woody, a lobbyist who was with the group during the Affordable Care Act negotiations, is returning.

DeShong, the group’s most senior public affairs executive, departs at the end of the month after about two years at the organization. The passage of the Democrats’ sweeping domestic package — which included drug pricing provisions loathed by the industry — marked a good time to make a change, she told me in a call. In addition to looking at getting involved in philanthropy, she’s joined the Fairfax County Democratic Party. DeShong wants to elect more Democrats but hasn’t ruled out a run for local office herself.

I broke the news that PhRMA is looking to replenish the population of senior Democrats on its advocacy team, which has been diminished over the last couple of years in the wake of its major drug pricing loss.

As part of that effort, the group is hiring back Woody as a vice president in its lobby shop. He’s been at lobbying firm East End Group since 2010 and will start “in the coming weeks,” a person with knowledge of the move told me. And I’m hearing that the search is on for more lobbyists with Democratic connections on Capitol Hill.

Abortion

IN DOBBS’ WAKE, OB-GYNS GET POLITICAL — OB-GYNs, many of whom have never mobilized politically, are jumping into the world of activism after the Supreme Court overturned Roe, write Alice and (the other) Megan.

The doctors are lobbying state lawmakers, testifying before committees, forming PACs and launching online campaigns against proposed abortion restrictions in states like Indiana, South Carolina, West Virginia, Texas and Nebraska. They’re also at the forefront in legal battles over abortion access, trying to press upon officials and lawmakers the implications abortion restrictions can have on providers and patients.

Nebraska state Sen. Adam Morfeld, a Democrat who’s served in the legislature for eight years, said that although doctors have lobbied on policy through professional associations, he’s “never seen medical providers organize themselves in the way they did for this.”

With legislative sessions mostly over for the year and governors unlikely to call special sessions in most states, some groups of doctors are turning their attention to influencing the November elections — endorsing candidates in their states who support abortion rights, raising money to fund ads and mailers, encouraging people to register to vote and exploring whether it’s possible to get an abortion rights referendum on the ballot in future elections.

‘ABORTION REVERSAL PILLS’: THE LATEST MISINFORMATION — Social media platforms are flooded with an unproven way for a pregnant person to halt a medication abortion before it can take effect. And they’re struggling to keep up to tamp down on misinformation, report Ruth and POLITICO’s Rebecca Kern.

The claims surrounding the so-called abortion reversal pill method — which involves taking progesterone after ingesting the first drug in the two-pill abortion regimen — have been online for years but skyrocketed after Roe was overturned.

An analysis of “engagement” data — the number of likes, reposts and comments — showed a significant spike in abortion-reversal posts across platforms after the Dobbs decision. On Facebook alone, there were 3,500 interactions with abortion reversal pill content on June 24, the day of the Supreme Court’s abortion ruling. The day before? Just 20.

Although social media companies have vowed to crack down on medical misinformation and disinformation, abortion-reversal content and discussions can still be found.

It hasn’t helped that federal regulators, including the Food and Drug Administration, haven’t weighed in on the method’s safety or efficacy, making it challenging for platforms to tamp down on the disinformation without an authoritative voice to cite.

POLITICO ASKS: How are abortion laws affecting your health care access? Please take a moment to fill out our survey.

NICE FLOOD PLAN YOU GOT THERE. WOULD BE A SHAME IF SOMETHING HAPPENED TO IT — New Orleans is being punished for its refusal to enforce the state’s stringent abortion ban, POLITICO’s Ariel Wittenberg writes.

The Louisiana State Bond Commission, at the urging of Louisiana Attorney General Jeff Landry, has voted twice to delay the approval of a $39 million line of credit for a project crucially needed by the city to protect itself from floods.

City officials passed a resolution this summer that urged law enforcement not to enforce the ban, which provides no exceptions for rape and incest. The city’s sheriff said she wouldn’t accept inmates accused of violating the ban at the jail, and the district attorney said he would not prosecute abortion providers or patients.

Landry, a potential gubernatorial hopeful, called the defiance a “dereliction of duty.” He said the commission should “use the tools at our disposal to bring them to heel.”

But the city isn’t backing down, said Helena Moreno, president of the New Orleans City Council.

eHealth

AGENCIES FAIL ON HAVING DISABILITY-COMPLIANT TECH — Although Congress ordered federal agencies to make technology accessible for people with disabilities in 1998, many of them are still failing to do so, Ruth reports. What’s more, enforcement is virtually nonexistent, and agencies are spending little effort or money to comply.

The Information Technology and Innovation Foundation, a Washington, D.C., think tank that promotes the use of technology in policy solutions, audited federal websites in 2021. They found that 30 percent of them, including popular sites like weather.gov, energystar.gov and census.gov, did not pass an automated accessibility test and nearly half had webpages that failed the test.

What We're Reading

Iranian officials rushed approval for an unproven Covid-19 vaccine backed by a corporate empire close to the country’s supreme leader, Ayatollah Ali Khamenei, according to The Washington Post.

Union Pacific employees who lost their jobs because of health issues are fighting back with federal lawsuits, The Associated Press reports.