Amid much wrangling with federal regulators, the Texas Medical Association is taking steps to hold them accountable for complying with TMA’s second legal victory nullifying certain rules governing out-of-network payment disputes under the No Surprises Act.
After attempting to suspend some payment determinations still pending in the federal independent dispute resolution (IDR) process, the Centers for Medicare & Medicaid Services announced in late February that it would resume the process and as of March 17, processing of payment decisions also has resumed.
As of that date, "disputing parties will begin receiving a majority of their payment determination notices from the IDR portal," specifically from this email address: firstname.lastname@example.org, federal regulators said. "We ask disputing parties to make note of this email address."
The back and forth comes at a time when the government faces a huge backlog in surprise-billing arbitration cases. TMA still has concerns about regulators’ lag in updating federal guidance in accordance with the ruling – which they have yet to do – and the potential for that lag to further delay the timely resolution of payment disputes.
Meantime, medicine is holding regulators’ feet to the fire and taking steps to ensure their contracted arbitrators understand the implications of TMA’s latest courtroom victory.
In a series of letters issued to the 13 independent entities certified to conduct the dispute resolutions, TMA attorneys remind the arbitrators that the Feb. 6 court decision “significantly impacts how you execute your duties, and it is important that you understand the judge’s reasoning in this case.”
In that suit, the U.S. District Court for the Eastern District of Texas sided with TMA – again – in the second of four lawsuits contesting various components of the federal arbitration process that all serve in various ways to skew arbitrations in favor of insurers and against physicians.
In its first case, TMA successfully challenged an interim final rule that skewed the IDR process in health plans’ favor. But even after being ordered to go back to the drawing board, the federal agencies returned with a final rule that “nevertheless continues to place a thumb on the scale” in favor of insurers’ bids, District Judge Jeremy D. Kernodle wrote on Feb. 6, by allowing arbitrators to default to an opaque and flawed insurer-calculated amount called the qualifying payment amount (QPA), instead of looking at a range of factors as lawmakers intended.
The ruling in TMA’s second lawsuit again invalidated that part of the rule, which TMA President Gary Floyd, MD, called “a major victory for patients and physicians,” as well as a reminder that federal agencies must adopt regulations in accordance with the law.
In that regard, TMA in its letters emphasizes “the court’s decision makes clear” that IDR entities are not required to:
- Consider the QPA first among the statutory factors;
- Presume the QPA is credible while subjecting other relevant information to a credibility test;
- Ignore non-QPA information unless the provider can prove this information is not already accounted for or reflected in the QPA; or
- Provide special justification as to why weight was given to non-QPA information.
In addition to those guardrails around the arbitration process, the No Surprises Act requires arbitrators to appropriately consider other factors relevant to the value of physicians’ services, such as physicians’ training and experience, the complexity of the patient case, and claims payment data, among others, TMA’s letters state.
“If an IDR entity were to apply any of the Departments’ rules that have now been vacated, this would subject the payment determination to potential judicial review, could render the decision no longer binding on the parties, and could even result in decertification by the Departments,” TMA warned. “To avoid these risks, IDR entities should closely adhere to the text of the [No Surprises Act] in reaching payment determinations.”
Physicians may use the letter that applies to their certified IDR entity when submitting a request for independent dispute resolution.
Dr. Floyd says TMA’s latest victory in the ongoing litigation “will promote patients’ access to quality care when they need it most and help guard against health insurer business practices that give patients fewer choices of affordable in-network physicians and threaten the sustainability of physician practices.”
Despite TMA’s continued success in its No Surprises Act litigation, the battle for a fair IDR process is still far from over. TMA’s two other lawsuits – one over flaws in how the QPA is calculated, and one over excessive arbitration fees – are still pending.
Meanwhile, a preliminary report shows federal agencies have received “significantly more” IDR cases than anticipated. From April 15 to Sept. 30, 2022, more than 90,000 claims were received; of those, about one-quarter had been resolved, though only 15% of resolved claims had resulted in a payment determination.
The agencies said in the report they are working to “enhance the Federal IDR portal’s ability to intake and process disputes and associated data” and plan to supplement the initial report at a later unspecified date.
Amy Lynn Sorrel
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