On Friday October 6^th, the Centers for Medicare & Medicaid Services (CMS) announced new guidance in response to the August ruling in Texas Medical Association v. United States Department of Health and Human Services (“TMA III”) that vacated several provisions of the existing No Surprises Act (NSA) regulations. Our organizations are strongly opposed to this newest guidance, which further broadens the already significant discretion health plans had on how they may calculate qualifying payment amounts (QPAs) under the NSA’s original implementation.  In the announcement, the Departments state that no additional guidance is expected to be provided to health plans about how to calculate the QPA, and instead, simply leaves insurers the discretion to calculate QPAs using their own “good faith” interpretation of the TMA III ruling and remaining regulations. Read more.

As the No Surprises Act’s Independent Dispute Resolution (IDR) portal surpasses the 8-week mark since its halt of full operations for the filing of new IDRs, the American College of Emergency Physicians, American College of Radiology, American Society for Anesthesiology, the Emergency Department Practice Management Association, and Radiology Business Management Association together urged the U.S. Department of Health and Human Services to reopen the national portal. Read More.

On September 18, EDPMA filed an amicus brief in the Court of Appeals for the Fifth Circuit in support of the challenge by the Texas Medical Association to a provision of the Final Regulation of the Department of Health and Human Services under the No Surprises Act (“NSA”).  The challenged provision implicitly calls upon Independent Dispute Resolution (“IDR”) entities to give paramount importance to the Qualifying Payment Amount (“QPA”) in the IDR process under the NSA. Our brief explains why the district court was correct in concluding that the provision wrongly tilts that process in favor of insurers — and is contrary both to the language of the NSA and to the congressional goal of assuring fair payment to out-of-network physicians.

Our brief highlights the problems caused by the challenged provision for emergency physicians and for patients. It provides factual support, based in part on EDPMA studies, that insurers’ manipulation of the QPA has adversely affected not only out-of-network payments, but in-network payments as well.  It stresses that, in light of EMTALA and other factors, the challenged provision would be particularly harmful for the delivery of emergency medical care to patients.

The issues in the case are still being briefed, and we don’t know when the Court of Appeals is likely to issue a ruling.  But we have taken a strong stand in support of our members and the patients we serve.  See the EDPMA brief here.

As of Tuesday, August 29th, the Federal IDR portal remains closed to initiation of new disputes. The portal has been closed to new disputes since August 3, 2023, after a court ruling vacated the 2023 administrative fee of $350 as well as one of the batching requirements. Read More.

EDPMA Chair of the Board, Andrea Brault, MD MMM FACEP, released the following statement regarding the summary judgement-in-part issued in favor of the Texas Medical Association (TMA), et al., in “TMA IV” and CMS’ subsequent freeze of the IDR and patient dispute process:

“On three consecutive occasions, the courts have vacated regulatory decisions related to the implementation of the No Surprises Act that deviate from statute to favor insurers at the expense of clinicians,” said Dr. Brault. “We will continue to support initiatives that bring regulations in line with the statute, with an emphasis on protecting clinicians and their patients.” To read the full statement, click here.

On Friday, August 4^th, the U.S. Department of Health and Human Services (HHS) suspended the No Surprises Act’s Federal IDR process after the August 3^rd court ruling against the federal Departments on the increase of the 2023 IDR Administrative Fee and a portion of the Departments’ IDR batching criteria.

We understand that this will be a severe disruption for emergency medicine providers seeking fair reimbursement from health plan underpayments for services furnished to patients in the emergency department. EDPMA will keep members apprised of additional developments and attempt to obtain clarity and additional information. In the meantime, see the HHS announcement on the suspension of Federal IDR below:

August 4, 2023 – EDPMA is very pleased that the United States District Court in Texas accepted the position of the Texas Medical Association, other plaintiffs, EDPMA, and others that filed amicus briefs that two actions by the federal agencies responsible for implementing the No Surprises Act were not taken in compliance with law and were therefore struck down. EDPMA applauds the decision of the District Court.  We believe that the challenged actions were contrary to fundamental fairness. Click here to read the full statement and court ruling.

July 21, 2023 – As providers on the front lines of emergency care in this country, the Emergency Department Practice Management Association (EDPMA) is deeply troubled by the
proposal to expand the use of the significantly flawed Qualified Payment Amount (QPA) benchmark to establish further government price controls in the commercial market for our fellow physicians and hospitals. The QPA was meant to establish a measure of patient cost sharing, not a benchmark for payment of providers. To read the issue brief and full statement, click here.