No Surprises Act Developments

ASA Files a New Amicus Brief
ASA with the American College of Emergency Physicians (ACEP) and American College of Radiology® (ACR®) filed an amicus brief (PDF) to jointly urge a US Appeals Court to uphold a February 2023 TMA II decision that barred IDR entities from giving preferential treatment to payer-calculated QPAs during the consideration of disputes. The government is appealing the February 2023 ruling by the US District Court for the Eastern District of Texas. ACEP, ASA, and ACR strongly support the court’s decision to invalidate the QPA calculation.

Congressional Hearing on Flawed NSA Implementation
The House Committee on Ways and Means held a hearing on Tuesday, September 19, to discuss issues raised by stakeholders about the flawed implementation of the No Surprises Act. The bipartisan hearing came in response to concerns raised by ASA and other stakeholders that the implementation of the law was inconsistent with the language of the law and that Congressional intervention was necessary. The hearing highlighted the need for legislative action to fix implementation issues such as IDR backlogs, bogus payer-calculated qualifying payment amounts (QPA), overly restrictive batching and payers’ failure to pay physician practices that prevailed in the IDR process. Read ASA's statement to the committee. Two days after the hearing, ASA Director for North Carolina Paul Rieker represented anesthesiologists in a meeting with members of the House Congressional Doc Caucus, composed of Republican physicians and other health care professionals, to further discuss potential solutions to problems with the No Surprises Act implementation. 

Independent Dispute Resolution Process (IDR) Portal Partially Reopens
On September 21st, the Departments directed certified IDR entities to resume processing all single and bundled disputes submitted on or before August 3, 2023. The Departments stated they will provide guidance soon about other issues associated with these decisions. The portal remains closed to new submissions.

New Proposed Rules on IDR Fees
Also on September 21st, the federal departments released a new proposed rule regarding fees associated with the IDR process. The proposed rule details how the administrative and IDR fees will be calculated depending on if a claim is a single or batched item. The new proposed rule is a result of litigation (Texas Medical Association IV) that required the federal Departments to post for comment any changes in the fees through formal rulemaking. A final rule will take effect in January 2024. ASA along with other associations had previously advocated against the increase in fees that were irrational and overly burdensome for practices. ASA is completing a review of the proposed rule and will be submitting comments in opposition to many of the elements of the rule.

For more details about these developments, see the NSA Question of the Week.