Recently the U.S. Department of Labor issued a memorandum notifying the public and interested parties that the Qualifying Payment Amount (“QPA”) “presumption” has been invalidated as the result of a Federal Texas Court’s decision in a complaint filed by Texas Medical Association (“TMA”) et. al., against U.S. Departments of Health and Human Services HHS and other government agents and agencies.
The Court agreed with the TMA that the No Surprises Act Interim Final Rule: Requirements Related to Surprise Billing; Part II (“Rule) put forth by HHS was not consistent with Congressional intent and therefore eliminated the QPA portion of the Independent Dispute Resolution (“IDR”) process rule. According to the memorandum, the “Departments are reviewing the Court’s decisions and considering next steps,” to comply with the Court order.
HHS Withdraws No Surprises Act QPA Guidance
The memorandum, in part, aims to reassure patients that the Court’s order will not affect the ban on surprise billing, which went into effect January 1, 2022, as healthcare plans renew. Additionally, HHS agreed to withdraw guidance documents regarding the invalidated QPA portion of the Rule and vows to repost once the documents have been properly updated, favorable news for providers. It is uncertain whether the Departments will appeal the Texas Court’s decision, opt to simply update the Rule, or do both.
Factors to Be Considered in IDR
Reportedly, HHS has 60 days to file an appeal, noting arbitrators would not be able to apply the presumptive QPA during the appeal process, which presumably could take 2-3 years. In the event, the Departments decide to rewrite the QPA portion of the Rule to eliminate the QPA “presumption” and provide guidelines that instruct arbitrators to consider all of following factors stipulated in the statute when rendering a payment decision:
- The QPA
- Providers’ level of training, experience, and quality outcome measurements
- Market share
- Patient acuity or complexity of furnishing the item or service
- Teaching status, case mix, and scope of services of a facility
- Good faith efforts (or lack thereof) to enter into a network agreement (and contracted rates, if applicable)
It is not inconceivable that the Departments could revise the Rule with an alternate approach that may in effect dilute the importance of the factors other than the QPA.
New IDR Guidance Expected
In the meantime, lawsuits in multiple jurisdictions also filed by providers and other medical associations have challenged HHS the implementation of the IDR process and the constitutionality of the Rule is pending. Most recently, Judge Leon, who is handling a complaint filed by the American Medical Association and the Association of Air Medical Services, et. al. against HHS, was quoted as saying, “you want me to pump out a 60 or 70 page ruling when there’s a [Biden administration] rule coming out in May?” This could mean the Judge is not going to rule before May and it seems to indicate that HHS is working on a rewrite. We will continue to monitor the next steps in the rulemaking process.