In a recent development surrounding the implementation of the No Surprises Act (NSA), the United States Department of Justice (DOJ) has filed an appellate brief to appeal the Texas Medical Association (TMA) II decision. This decision vacated certain portions of the Interim Final Rules Part II which were determined to continue to prioritize the qualifying payment amount (QPA) in the federal independent dispute resolution (IDR) process.
The TMA II decision centered around the requirement that certified IDR entities must consider the QPA first when evaluating a payment dispute and then evaluate other credible factors if the IDR Entity had concluded these factors were not already accounted for in the QPA. The District Court Judge Jeremy D. Kernodle, ruled in favor of the plaintiffs (TMA et al) finding that the statute does not permit for the QPA to be prioritized above other factors and that the additional factors should not be considered embedded in the QPA. Kernodle said the interim rule improperly “places its thumb on the scale for the QPA, requiring arbitrators to presume the correctness of the QPA and then imposing a heightened burden on the remaining statutory factors to overcome the presumption.” The US District Court for the Eastern District of Texas ruled in favor of providers and ordered those related provisions of the August 2022 final rule to be vacated nationwide.
This decision followed the Courts prior ruling in the TMA I case that vacated the Interim Final Rules Part II rebuttable presumption that the QPA is the appropriate out-of-network rate unless credible evidence is provided proving otherwise and instead held that the QPA is just one of several factors for arbitrators to consider in resolving payment disputes under the NSA IDR process. This ruling that the QPA is the presumed out-of-network rate is not being appealed.
Among other things, the DOJ’s appeal argues that the plaintiffs (TMA et al) lack standing to challenge the provisions of the final rule. The DOJ asserts that the rule “aligns with the departments’ authority and effectively fulfills Congress’s directive to establish a single arbitration process”. We will continue to closely follow the progress of this litigation and other developments that arise under the NSA.
