Our friends at Texas Medical Association achieved a win for providers as the U.S. District Court of the Eastern District of Texas ruled in their favor to rescind several No Surprises Act regulations. These regulations are related to health plans calculating the qualifying payment amount in the independent dispute resolution (IDR) process between providers and insurers. CMS has temporarily paused the IDR process due to this ruling and an earlier one this month which struck down IDR administrative fee increases.
From the CMS Website:
On August 24, 2023, the U.S. District Court for the Eastern District of Texas issued an opinion and order in Texas Medical Association, et al. v. United States Department of Health and Human Services, Case No. 6:22-cv-450-JDK (TMA III), vacating certain portions of 86 Fed. Reg. 36,872, 45 C.F.R. § 149.130 and 149.140 , 26 C.F.R. § 54.9816-6T and 54.9817-1T, 29 C.F.R. § 2590.716-6 and 2590.717-1, and 5 C.F.R. § 890.114(a) as well as certain portions of several guidance documents. As a result of the TMA III decision, effective immediately, the Departments have temporarily suspended all Federal IDR process operations until the Departments can provide additional instructions. Disputing parties should continue to engage in open negotiation.
From the ruling:
In sum, the Court holds that the following regulations are unlawful and must be set aside because they conflict with the No Surprises Act: (1) including in the calculation of QPAs contracted rates for services that providers have not provided, August FAQs (FAQ 14); 86 Fed. Reg. 36,872, at 36,889; (2) including in the calculation of QPAs out-of-specialty rates, 45 C.F.R. § 149.140(a)(12); (3) excluding from the calculation of QPAs risk sharing, bonus, penalty, or other incentive-based or retrospective payments or payment adjustments, 45 C.F.R. § 149.140(b)(2)(iv); 45 C.F.R. § 149.140(b)(3)(i); (4) allowing self-insured group health plans to use rates from all plans administered by a third-party administrator in calculating the QPA, 45 C.F.R. § 149.140(a)(8)(iv); (5) starting the 30-day deadline for notice or denial of payment when the insurer receives the information “necessary to decide a claim,” 45 C.F.R. § 149.130(b)(4)(i); (6) requiring two separate IDR processes for a single medical air transport, Technical Guidance for Certified IDR Entities, CTRS. FOR MEDICARE & MEDICAID SERVS., at 2–3 (Aug. 18, 2022) (answering whether “multiple qualified IDR items or services be submitted together”); and (7) excluding from the calculation of air ambulance service QPAs case-specific or single-case agreements, 45 C.F.R. § 149.140(a)(1). The Court further holds that the following regulations are reasonable and reasonably explained and are upheld: (1) the challenged disclosure requirements, 45 C.F.R. § 149.140(d), and (2) the calculation of the QPA for air ambulance services based on census divisions in instances of insufficient information, 45 C.F.R. § 149.140(a)(7)(ii).
Link to full ruling: https://litigationtracker.law.georgetown.edu/wp-content/uploads/2023/01/TMA-III-Memorandum-Opinion-and-Order.pdf?mkt_tok=MTQ0LUFNSi02MzkAAAGN6nWOIXW8f6jG4xb-VosnkwjfE2iSAO3oD5y9vCFxMBYKWRk8T_rvcH3kDhuLzWT2sBptD9n5u2LXWZXmLuKUxZW3SBocqEklFTqiPJtc9j4
Congratulations and thank you to our friends at Texas Medical Association!