On Thursday, September 22, the Texas Medical Association (TMA) filed a lawsuit challenging the August 19th Final Rule of the “Requirements Related to Surprise Billing.” The suit challenges provisions concerning the way Independent Dispute Resolution (IDR) entities must treat the Qualifying Payment Amount (QPA) compared to the additional factors described in the law: training/experience/outcomes; provider and plan market share; patient acuity; teaching status/case mix/scope of services of the facility; and prior good faith efforts to contract. TMA is the same entity that successfully challenged the September 2021 Interim Final Rule which instructed IDR entities to consider QPA the presumptive correct reimbursement.
Why is this important?
This new lawsuit argues that the QPA is being treated differently, and more favorably, than the additional required information. Specifically, TMA argues that guidance in the Final Rule requires IDR entities to: (a) evaluate QPA first, and additional information second; (b) accept QPA as credible, but weigh the credibility of additional information; (c) accept that the QPA relates to the offer as required by the NSA, but evaluate whether any additional information appropriately relates to the offer; and (d) evaluate whether any additional information may already be incorporated into the QPA and avoid double counting that information if it is. TMA argues that these additional requirements are not required by the NSA itself; therefore, TMA is asking the court to strike that guidance.
In support of its position, TMA described the QPA as a “figure calculated in secret by the insurers” that neither providers nor the IDR entities can evaluate or challenge. When MultiPlan calculates QPA, we always make an explanation of our methodology available to demonstrate transparency in how we comply, and we will now more proactively include that explanation with our IDR briefs.
The first TMA lawsuit moved relatively quickly. The case was filed on October 28, 2021 and the court issued its summary judgement ruling on February 23, 2022. We will continue to monitor this case and provide updates when they are received.
February 10, 2023: An update is available here.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes. If you have questions about how the No Surprises Act applies to your organization, please consult your legal counsel.
