Congress enacted the bipartisan No Surprises Act (\u201cNSA\u201d) to end surprise medical bills for emergency services. Among various protections for patients, the NSA also provides for an independent dispute resolution (\u201cIDR\u201d) arbitration process to resolve payment disputes between providers and payors for out-of-network emergency services and certain services furnished by out-of-network providers at in-network facilities.<\/p>\n\n\n\n
Two years since the NSA became effective, the regulations promulgated by the Departments of Health and Human Services, Labor, and the Treasury (collectively, the \u201cDepartments\u2019\u201d) have faced numerous legal challenges with respect to the IDR process. One of the parties changing the course of this process by taking legal action is Texas Medical Association (referred to herein as the \u201cTMA\u201d).<\/p>\n\n\n\n
This article provides a timeline of the instrumental TMA cases and the following changes made to the NSA regulations, focusing on the effects to providers engaging in the IDR process.<\/p>\n\n\n\n
1. Providers Made it To First Base <\/strong><\/p><\/p>\n\n\n\n In TMA I,[1]<\/a> the Texas District Court vacated the portion of the regulation requiring that independent certified IDR entities presume that the qualifying payment amount (\u201cQPA\u201d)\u2014the median of the contracted rates\u2014is the appropriate out-of-network rate for the qualified item or service under consideration. IDR entities must use baseball-style arbitration to select one of the parties\u2019 proposed payment offers, but the amount closest to the QPA is not presumed to be the appropriate rate. Further, the District Court reiterated that IDR entities must consider all additional credible factors, as listed in the NSA, in addition to the QPA. This change evened the playing field by allowing the IDR entities to consider all factors. <\/p>\n\n\n\n 2. The Departments Make a Double Play<\/strong><\/p><\/p>\n\n\n\n After TMA I, the Departments filed its notice of appeal. However, the appeal was dismissed on October 24, 2022. Meanwhile, the Departments issued an Interim Final Rule in August 2022 (the \u201cRule\u201d).[2]<\/a> The Rule added two additional hurdles for providers to dodge as the Rule required arbitrators to: (i) consider the QPA first before considering the non-QPA factors, and (ii) presume the credibility of the QPA while evaluating the credibility of the non-QPA factors. The Rule also prohibited arbitrators from considering the non-QPA factors if the arbitrator believes those factors are accounted for by the QPA.<\/p>\n\n\n\n 3. Providers Make it To Second Base<\/strong><\/p><\/p>\n\n\n\n In TMA II,[3]<\/a> the District Court found that the Rule violated the Administrative Procedure Act (\u201cAPA\u201d) because the NSA unambiguously requires arbitrators to consider all the specified information, without weighing or otherwise treating one factor differently from the other factors. Because the Rule limited how arbitrators may consider that information, it was a violation of Congress\u2019 intent that the QPA and all non-QPA factors should be treated equally.<\/p>\n\n\n\n The Court found yet again that the Departments unlawfully shifted the arbitration process in favor of the QPA by impermissibly altering the NSA\u2019s unambiguous requirement for the arbitrator to consider each enumerated factor, and therefore deflating the out-of-network payment to providers.<\/p>\n\n\n\n 4. Bases Are Loaded and Providers are On Deck<\/strong><\/p><\/p>\n\n\n\n In TMA III,[4]<\/a> the Texas District Court continued to hold that the Departments deviated from the plain language of the NSA, in violation of the APA. The District Court confirmed that the NSA strictly requires the QPA to be calculated based on rates for services and items actually performed by a provider and based on the provider\u2019s specialty. Plans were calculating the QPA using \u201cghost rates\u201d and out-of-specialty rates, therefore artificially delating the QPA.<\/p>\n\n\n\n Additionally, the District Court confirmed that self-insured group health plans cannot use rates from all plans administered by a third-party administrator in calculating the QPA. Rates used to calculate the QPA for the plan must be based on rates paid by the specific self-funded plan alone.<\/p>\n\n\n\n This was a win for providers because the out-of-network rates would reflect the rates for the same specialty and will be based on rates previously paid by the specific self-funded plan. This translates to higher out-of-network rates, in-line with providers\u2019 costs and average reimbursement rates.<\/p>\n\n\n\n 5. Stadium Prices Go Down<\/strong><\/p><\/p>\n\n\n\n In TMA IV,[5]<\/a> the Texas District Court vacated two key aspects of the IDR process that were preventing providers from engaging in the federal IDR process.<\/p>\n\n\n\n First, the Texas District Court vacated the $350 administrative fee per party. In light of the ruling, CMS has returned the administrative fee to $50 (the original fee) until further notice, which makes the federal IDR process more affordable and accessible to participating parties. The higher administrative fees prevented providers from initiating IDR.<\/p>\n\n\n\n Second, the court\u2019s ruling vacated the batching rule that required providers to batch items and services that were \u201cthe same or similar items and services\u201d, meaning the items and services must be billed under the same service code. This batching rule created hurdles for initiating disputes because it forced providers to initiate separate disputes per service code, resulting in a greater administrative burden on providers and a higher volume of disputes. <\/p>\n\n\n\n The Departments suspended the IDR process in early August. Currently, Providers are essentially at a standstill as we all await the new proposed regulations.<\/p>\n\n\n\n 6. Seventh Inning Stretch \u2013 Shifting the Game Strategy<\/strong><\/p><\/p>\n\n\n\n On September 19, 2023, the House Committee on Means and Ways held a hearing to address the flawed implementation of the NSA, and the major negative impacts it has on providers. The Committee invited major league witnesses to help the Committee understand the gap between the intent and implementation of the NSA.[6]<\/a> The witnesses touched on the following points:<\/p>\n\n\n\n Even though the Departments have temporarily suspended all Federal IDR process operations, Congress has taken the first step to even the baseball field for all players and bring the NSA back to its original intent. When the parties return to the baseball diamond, the hope is that the IDR process will be free of foul balls so that ultimately the patients get the win.<\/p>\n\n\n\n [1]<\/a> Texas Med. Ass’n v. United States Dep’t of Health & Hum. Servs., 587 F. Supp. 3d 528 (E.D. Tex. 2022), appeal dismissed, No. 22-40264, 2022 WL 15174345 (5th Cir. Oct. 24, 2022).<\/strong><\/p>\n\n\n\n [2]<\/a> See<\/em> Requirements Related to Surprise Billing; 86 Fed. Reg. 55,980 at 56,061.<\/p>\n\n\n\n [3]<\/a> Texas Med. Ass’n v. United States Dep’t of Health & Human Services,<\/em> No. 6:22-CV-372-JDK, 2023 WL 1781801 (E.D. Tex. Feb. 6, 2023).<\/p>\n\n\n\n [4]<\/a> Texas Med. Ass’n v. United States Dep’t of Health & Hum. Servs.<\/em>, No. 6:23-CV-59-JDK, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023).<\/p>\n\n\n\n [5]<\/a> Texas Med. Ass’n v. United States Dep’t of Health & Hum. Servs.<\/em>, No. 6:22-CV-450-JDK, 2023 WL 5489028 (E.D. Tex. Aug. 24, 2023).<\/p>\n\n\n\n [6]<\/a> Hearing on Reduced Care for Patients: Fallout From Flawed Implementation of Surprise Medical Billing Protections, Sept. 19 2023, https:\/\/waysandmeans.house.gov\/event\/hearing-on-reduced-care-for-patients-fallout-from-flawed-implementation-of-surprise-medical-billing-protections\/<\/a> (last visited Sept. 23 2023).<\/p>\n","protected":false},"excerpt":{"rendered":" Congress enacted the bipartisan No Surprises Act (\u201cNSA\u201d) to end surprise medical bills for emergency services.<\/p>\n","protected":false},"author":13,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_seopress_robots_primary_cat":"none","_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","inline_featured_image":false,"footnotes":""},"categories":[10],"tags":[],"_links":{"self":[{"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/posts\/953"}],"collection":[{"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/comments?post=953"}],"version-history":[{"count":1,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/posts\/953\/revisions"}],"predecessor-version":[{"id":954,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/posts\/953\/revisions\/954"}],"wp:attachment":[{"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/media?parent=953"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/categories?post=953"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.wolfepincavage.com\/wp-json\/wp\/v2\/tags?post=953"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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