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Medical Groups Renew Challenge to IDR Provision of Surprise Billing Rule

Analysis  |  By Jay Asser  
   September 28, 2022

Providers are still unhappy with the government's final rule regarding the No Surprises Act's independent dispute resolution (IDR) process.

Provider groups are once taking aim at the arbitration process under the No Surprises Act, expressing dissatisfaction with the government's rewritten final rule.

The Texas Medical Association (TMA), Tyler Regional Hospital, and a physician filed a new lawsuit in the United States District Court for the Eastern District of Texas, arguing that the final rule still gives health insurers an unfair advantage over providers in the IDR process.

Meanwhile, the American Hospital Association (AHA) and the American Medical Association (AMA) stated they would file an amicus brief in support of the lawsuit.

Under the No Surprises Act, patients are protected from unexpected bills for emergency services at out-of-network facilities or for out-of-network providers at in-network facilities. The law has an arbitration process when providers and insurers disagree on the charged rates.

After the government released the interim final rule in 2021, TMA filed a lawsuit challenging it, alleging that IDR process unlawfully required arbitrators to consider the insurer-calculated qualifying payment amount (QPA) as the primary factor in deciding between the provider or payer rate.

A federal judge ruled in favor of TMA in February, striking down the piece of arbitration process, which HHS appealed in April before requesting a hold on its appeal.

CMS then released a revised interim final rule in August, but TMA claims the new rule is simply rewritten from the previous one and continues to give insurer an advantage by requiring the arbitrator to consider the QPA first and foremost.

"This is unfair to physicians and the patients we care for, so we had to seek a fairer process. There should be a level playing field for physicians in payment disputes after they’ve cared for patients," TMA president Gary Floyd said in a statement.

"TMA was hopeful the federal agencies would write final rules fair to everyone, especially after the federal district court ruled the agencies’ previously challenged rules were unlawful. Unfortunately, the federal agencies returned with a plan tipping scales in health plans' favor once again," he added.

The AHA and AMA had their own lawsuit against the government's September 2021 interim final rule, but moved to dismiss the challenge after the revised final rule was released in August. Now, they will move forward with the amicus brief as they continue their fight.

"The Texas court previously held that the interim final rule impermissibly rewrote clear statutory terms by placing a thumb on the scale in favor of commercial insurers," The AHA and AMA said in a joint statement. "The final rule suffers from the same problems. As was the case with the previous suit, the AHA and AMA want to see the law's core patient protections move forward and seek only to bring the regulations in line with the law."

Jay Asser is the contributing editor for strategy at HealthLeaders. 

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