乌鸦传媒

On Monday, the U.S. Department of Labor : it and other departments would be revising parts of the No Surprises Act rules that a lawsuit had, according to them, recently "invalidated." Rules protecting patients from surprise billing will remain the same.

This abrupt move comes on the heels of a U.S. district of the Texas Medical Association (TMA), who sued the Department of Health and Human Services (HHS) and other agencies for their regulatory interpretation of the No Surprises Act. HHS still has the option to appeal the decision before changing its regulations, but the memo implies it has elected to rewrite the controversial parts instead.

"I'm not surprised," said Glenn Melnick, PhD, of the University of Southern California Sol Price School of Public Policy in Los Angeles. An appeals process, he said, could take as long as 2 to 3 years because of COVID-related backups. "They're better off going back to the table and trying to rewrite these to get something implemented sooner, rather than waiting for an appeal, which is no guarantee you're going to win anyway."

The Texas Medical Association's qualms were with the independent dispute resolution process meant as a last resort for doctors and insurers who cannot agree on a price for medical services. Under the Act, the portion of what a doctor charges out-of-network insurers that they don't agree to pay can no longer be passed on to patients. Instead, they must come to an agreement.

The lawsuit, resolved on February 23, agreed with the Association that the rules' emphasis on a pricing benchmark called the Qualifying Payment Amount (QPA) in these disputes wasn't consistent with the law passed by Congress. A "rebuttable assumption" that the bid closest to the QPA would be the winning one in arbitration was vacated. Organizations representing physicians, including the TMA, had argued this would stack the deck in favor of insurers, who calculate the QPA based on their median in-network rates for services in a particular geographical area.

For now, the exact nature of the revisions is unclear, although the memo does note that "the Departments are reviewing the court's decision and considering next steps." They laid out the "steps the Departments are taking to conform to the court's order," including "withdraw[ing] guidance documents that are based on, or that refer to, the portions of the Rule that the court invalidated" and providing more training to independent dispute resolution entities.

Donald "Rocky" Wilcox, JD, the TMA's general counsel, wrote in an emailed statement to 乌鸦传媒 that "the vacatur ordered by the judge went into effect immediately, with nationwide effect. Thus, the actions noted by the Department in the memorandum are the types of steps we would expect a responsible agency to take to ensure it is acting in compliance with the court's order."

Surprise billing in the past has given emergency physicians, radiologists, anesthesiologists, and others a leg up when negotiating network contracts with insurers in a field less reliant on these networks for patients and pay. Privileging the QPA or median network rate in pay disputes would mean insurers could justify cutting pay rates for services at hospitals being paid more than their median.

Because by definition, half of the hospitals in a given area under insurance plans were being paid more than median rates -- and many significantly more -- a sudden change like favoring the median unless presented with overwhelming evidence that the service was worth more "gives immediate disproportionate power to the [insurance] plans, which could be very disruptive," Melnick said.

Instead, emergency physicians want arbitrators settling pay disputes to take into account other factors that influence cost equally, like case complexity, physician experience, and historic in-network contracted rates. How HHS decides to revise the rules will determine whether or not providers will get what they want.

HHS still has 60 days to appeal, according to Wilcox. "Even if they choose to appeal, they would not be able to instruct arbiters to apply a rebuttable presumption in favor of the QPA unless they successfully win their appeal," he said.

challenging the HHS for its No Surprises Act rules are underway, including from the American Medical Association and the American Society of Anesthesiologists.

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