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House Committee Calls for 'Swift Action' on No Surprises Act Final Rule

Analysis  |  By Jay Asser  
   November 23, 2022

Lawmakers take issue with the importance of the qualifying payment amount (QPA) in the independent dispute resolution (IDR) process.

The House Ways and Means Committee is the latest group to call for changes to the No Surprises Act final rule, arguing that the QPA remains too big of a factor in the IDR process.

In a letter to HHS, the Department of Labor, and the Department of the Treasury, the leaders state they are "severely disappointed to find that the August 2022 final rule violates the No Surprises Act in the same ways as before."

The IDR process allows providers and insurers to enter into arbitration when they cannot agree on fair reimbursement. After the government released the interim final rule in 2021, the Texas Medical Association filed a lawsuit alleging the rule required arbitrators to heavily weigh the insurer-calculated QPA in deciding the rate. A federal judge ruled in favor of TMA in February before CMS released a revised final rule in August, which TMA once again challenged and other major medical associations criticized.

Specifically, the committee highlights in the letter the departments' creation of a 'double counting' test, which directs IDR entities to "consider whether the additional information is already accounted for in the QPA."

Lawmakers argue that while the No Surprises Act requires IDR entities to separately consider all of the statutory factors, the final rule prevents entities from considering factors like patient acuity and the item or service unless providers meet the burden of disproving double-counting within the QPA.

"As written, this perpetuates the flaws of the interim final rules and continues to unfaithfully implement the statutory text and intent of the law by skewing the determination of the IDR process toward the QPA," the committee writes.

To stay true to the "Congressional intent" of the No Surprises Act, the lawmakers ask the departments to swiftly adjust portions of the final rule by taking immediate steps.

Jay Asser is an associate editor for HealthLeaders.

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