On Wednesday, November 30, 2022 the Texas Medical Association (TMA) filed its third lawsuit against the Departments of Health and Human Services, Labor and the Treasury (the “Departments”) claiming that the final revised rule under the No Surprises Act (NSA), a federal law that aims to protect patients from surprise medical bills, continues to unfairly favor insurers.
PREVIOUS TMA NSA CHALLENGES
The initial lawsuit filed by the TMA challenged portions of the rules instructing arbitrators to presume that the QPA was the appropriate out-of-network rate in making a payment determination and arbitrators should select the offer closest to the QPA. The Texas Eastern District court ruled in favor of the TMA and invalidated the Qualifying Payment Amount (QPA) as the presumptive factor for making payment determinations under the NSA’s Independent Dispute Resolution (IDR) process.
Following the Court’s decision, the Departments adopted revised final rules that requires the IDR entity to “select the offer that best represents the value of the item or service” at issue in the dispute. However, TMA alleges that the revised rule continues to unlawfully favor the QPA, and that the Departments included several other provisions in the revised rule as still exceeding the Departments rule making authority or in conflict with the No Surprise Act as adopted by Congress. A hearing was held on December 20, 2022 regarding the parties respective motions for summary judgement. The Court took the matter under advisement and the parties are awaiting a decision.
MOST RECENT ISSUES WITH THE QPA
In the most recent suit, TMA is challenging several other aspects of the final rule, including that the revised rule:
- permits insurers to include “ghost rates” in their QPA calculations defined as contracted rates with physicians who do not actually provide the service at issue and therefore these physicians have little to no incentive to negotiate rates, thereby leading to artificially low QPAs,
- permits insurers to include rates of physicians who are not in the same or similar specialty,
- requires insurers to use an amount other than the total payment in calculating a QPA when a contracted rate includes “risk sharing, bonus, or penalty, and other incentive-based and retrospective payments or payment adjustments”, and
- permits self-insured group health plans to use their third-party administrators to determine the QPA for the plan sponsor effectively granting self-insured plans to opt in to a lower QPA for payment disputes with physicians.
After nearly one year since the implementation of the No Surprises Act (NSA), the Final Rule remains legally challenged with a number of amicus briefs being filed in support of TMA. We will continue to monitor these ongoing matters and update as warranted. We remain steadfast in helping our clients navigate the ongoing legal and regulatory challenges impacting out-of-network provider reimbursements.
