As we welcome in 2022, the much-anticipated federal legislation, the No Surprises Act, has officially gone into effect to protect patients from surprise bills when receiving certain medical services mainly emergency care and non-emergency care services from out-of-network providers at in-network facilities unless notice and consent is obtained prior to the services being rendered. The law protecting patients from balance billing is the culmination of multiple years of bipartisan congressional efforts and endorsed by the healthcare industry.
Resolving Payment Disputes Under the No Surprises Act
At the end of September, federal regulators responsible for the implementation of the No Surprises Act issued the independent dispute resolution (IDR) rule intended to resolve payment disputes between providers and payors. The rule has been widely criticized for being unbalanced and incongruent with congressional intent. The independent dispute resolution (IDR) process is administered by certified IDR entities who, according to the statute, would consider all relevant information prior to making a payment determination, with no one factor holding more significance than another.
Notwithstanding, the IDR rule issued does not require equal consideration of all relevant information rather it mandates that the qualifying payment amount, defined as the payor’s median in-network contracted rate, be used as the presumptive payment amount for provider services. Furthermore, arbitrators must select the offer submitted that is in the closest proximity to the QPA and only deviate from the QPA if there is credible evidence that “clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate.”
Challenging the Qualifying Payment Amount
Four lawsuits have been filed challenging the rule and the QPA as the presumptive payment amount. Over the last several weeks, objections to the rule have intensified with a number of healthcare groups along with members of Congress taking legal action in support of the lawsuits filed to date.
The amicus brief filed by members of Congress in support of the Texas NSA case plaintiffs’ motion for summary judgment asserts that the rule “defies the choices Congress expressly made in the No Surprises Act” and “adopts an approach that Congress rejected.”1
An excerpt from the brief sums up the congressional members’ position as follows:
“As elected officials who both possess insight into the intent of the No Surprises Act—most of whom had intimate involvement in crafting and negotiating the bill— and who also bring a wealth of healthcare experience to the table, amici are uniquely positioned to explain how and why Congress came to pass the No Surprises Act as written. Amici have a strong interest in guarding the prerogatives of the legislative branch and ensuring that administrative agencies respect the limits of their delegated authority.”
Reach Out to Cohen Howard With Your No Surprises Act Questions
Our team will continue to bring forth relevant information concerning the implementation of the No Surprises Act and we remain ready to help your practice succeed in these unprecedented times. Please contact us with any questions.
1“Amici are: Andy Harris, M.D. (MD-01), Michael C. Burgess M.D. (TX-26), Roger Marshall M.D. (R-KS), Brian Babin, D.D.S. (TX-36), Larry Bucshon, M.D. (IN08), Earl L. “Buddy” Carter, R.Ph. (GA-01), Scott DesJarlais, M.D. (TN-04), Neal P. Dunn, M.D. (FL-02), Ronny L. Jackson, M.D. (TX-13), John Joyce, M.D. (PA-13), Mariannette J. Miller-Meeks, M.D. (IA-02), Gregory F. Murphy M.D. (NC-03), Jefferson Van Drew, D.M.D. (NJ-02).”