No Surprises Act Regulators Withdraw Independent Dispute Resolution Guidance - To Rewrite IDR Regulations

On February 28, the Center for Consumer Information and Insurance Oversight (CCIIO) released a memorandum withdrawing portions of its formal No Surprises Act (NSA) implementation guidance.  CCIIO’s action came in response to a Texas Medical Association (TMA) lawsuit ruling on February 23 invalidating the government’s NSA regulations directing arbiters to give primary consideration to an insurers median in-network rate when adjudicating payment disputes between physicians and insurers. The courts found that the regulations were in conflict with the actual text of the NSA law.   

CCIIO, the federal government’s lead agency on the No Surprises Act (NSA) implementation, had issued guidance related to its Independent Dispute Resolution (IDR) regulations that created a “rebuttal presumption” that the insurer’s median in-network rate, also referred to as the Qualifying Payment Amount, was the appropriate payment rate. TMA argued that the regulation was inconsistent with the text of law which directs the arbiter to consider a broad range of factors, without preference to any one factor, in determining the appropriate payment rate. 

At the direction of the Court, the federal agencies will need to rewrite the regulation related to the IDR process, and issue the revised regulations and related guidance.

The federal government may also choose to appeal the TMA ruling.

The arguments made by the TMA in their Texas-based litigation track closely with the lawsuit filed in Chicago, IL by ASA, the American College of Emergency Physicians and the American College of Radiology challenging the same NSA regulation.