In October 2021, the Texas Medical Association (“TMA”) sued the Departments of Health and Human Services (“HHS”), Labor and Treasury and the Office of Personnel Management (collectively, the “Departments”) challenging an Interim Final Rule which required certified independent dispute resolution (“IDR”) entities to employ a presumption in favor of the qualifying payment amount (“QPA”) when determining the out-of-network (“OON”) rate through the No Surprises Act’s (the “Act”) IDR process. The U.S. District Court for the Eastern District of Texas (the “Court”) ruled in favor of TMA and overturned the QPA presumption. For additional information on this decision, please refer to our previous article here.
In response to this decision, the Departments published a Final Rule revising its regulatory framework for the IDR process to eliminate the QPA presumption. A more detailed discussion of the Final Rule is available here.
Shortly thereafter, however, TMA filed a complaint with the Court arguing that the revised methodology in the Final Rule is also contrary to the language of the Act because it requires the IDR entity to give greater weight to the QPA as compared to any of the other statutory factors the IDR entity is required to consider in making its determination.
More specifically, the Final Rule requires IDR entities to presume the QPA is credible and requires the IDR entity to always consider the QPA when determining the appropriate OON rate. Conversely, the IDR entity is not to presume that any information presented in support of any of the other factors enumerated in the Act is credible. The Final Rule further provides that the IDR entity is to consider information related to factors other than the QPA only if such factors are not already reflected in the QPA. If the IDR entity determines that a relevant factor is not already reflected in the QPA, the IDR entity must provide an explanation describing the reason and the weight afforded to each non-QPA factor considered in reaching the IDR’s payment determination.
TMA argues that each of these factors “place a thumb” on the scale in favor of the QPA even though the “Act nowhere states that the QPA is to be the primary or most important factor” considered by the IDR entity in determining the appropriate OON rate. This case pends before the same judge who ruled in favor of TMA on its previous challenge to the IDR methodology. Hall Render will continue to monitor and provide substantive updates concerning this pending litigation.
For more information on surprise billing matters, please contact:
- Benjamin Fee at (720) 282-2030 or bfee@hallrender.com;
- Lisa Lucido at (248) 457-7812 or llucido@hallrender.com;
- Angela Smith at (317) 977-1448 or asmith@hallrender.com;
- Matthew Reed at (317) 429-3609 or mreed@hallrender.com; or
- Your primary Hall Render contact.
Special thanks to James Kiai, law clerk, for his assistance with the preparation of this article.
Hall Render Blog Posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship
