Federal Memo Signals Compliance With TMA Court Win – For Now
By Joey Berlin

Days after the Texas Medical Association’s Feb. 23 court victory over federal regulators, the U.S. Department of Health and Human Services (HHS) says it’s taking steps to comply with the court’s decision on rules for the No Surprises Act – even as HHS is “considering next steps” after TMA’s win.

HHS made its announcement of how it will “conform to the court’s order” in a Feb. 28 memo, after the U.S. District Court for the Eastern District of Texas sided with TMA in its lawsuit against HHS and several other federal agencies.

TMA had argued part of the rulemaking issued for the No Surprises Act directly conflicted with the language of the law and created an illegal piece of the independent dispute resolution (IDR) process to resolve out-of-network billing disputes. The process in the rules, TMA said, would make an arbiter disproportionately rely on one insurer-calculated factor, the “qualifying payment amount,” to determine fair payment – not several factors, as lawmakers had intended.

District Judge Jeremy D. Kernodle agreed in his 35-page decision, which granted TMA’s motion and invalidated that part of the rule.

HHS’ Feb. 28 memo notified physicians, practitioners, and others of three steps the department would take to comply with Judge Kernodle’s order. The agency said it would:

  • Immediately withdraw guidance that is based on or refers to the parts of the rule the district court invalidated, and update and repost it;
  • Provide training on the revised guidance for both “certified IDR entities” – i.e., arbiters – and “disputing parties,” such as physicians and insurers, through webinars and roundtable discussions; and
  • Open the IDR process for submissions through the IDR portal, which will include accepting disputes in which the law’s negotiation period has already passed. “For disputes for which the open negotiation period has expired, the Departments will permit submission of a notice of initiation of the IDR process within 15 business days following the opening of the IDR Portal,” the memo said.

Although HHS is signaling compliance with the court’s decision in the short term, that doesn’t necessarily mean the legal battle for a fair IDR process is over. TMA is waiting to see whether the “next steps” the government mentioned could include an appeal. The federal agencies have 60 days to decide.

In the meantime, as HHS’ memo also noted, the court decision “did not affect any of the Departments’ other rulemaking under the No Surprises Act. Thus, consumers continue to be protected from surprise bills for out-of-network emergency services, out-of-network air ambulance services, and certain out-of-network services received at in-network facilities.”

HHS is directing physicians who have questions about the law to the No Surprises Help Desk at (800) 985-3059.

Find educational materials, including an American Medical Association Toolkit and TMA’s resource list, on TMA's surprise billing webpage.

And read Texas Medicine Today for updates as TMA develops more detailed materials to help physicians navigate the state and federal surprise billing laws. Submit your questions to the TMA Knowledge Center.

Last Updated On

March 02, 2022

Originally Published On

March 02, 2022

Joey Berlin

Managing Editor

(512) 370-1393
JoeyBerlinSQ

Joey Berlin is managing editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area. He lives in Austin.

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