Litigation, Policy, and Other Developments

Q: What is ASA doing about the Independent Dispute Resolution (IDR) Process? 

A: Qualifying Payment Amount (QPA) Weight in Arbitrations – Win! 

On Friday, August 2, 2024, the Fifth Circuit upheld (PDF) the Eastern District of Texas' decision (PDF) in February 2023 ("TMA II") that vacated unlawful No Surprises Act regulations for how IDR entities must prioritize factors and give undue preference to the qualifying payment amount (QPA) in their arbitration determinations.

ASA filed two amicus briefs supporting TMA’s case, both of which the Court cited in this recent ruling and prior rulings on this case. 

In the long-awaited ruling, the Circuit Court affirmed that, when IDR entities are considering the value of out-of-network services for a claim brought to the Federal IDR process, they cannot be directed by the government to give preferential weight to health insurance companies' median in-network rate (i.e., the QPA). ASA has argued that insurers have been undervaluing anesthesia services through their opaque process of calculating the QPA. This recent court ruling is a significant win for all physicians and will ensure that practices will be assured a fair process when disputing their claims. This is the fifth-straight NSA win for physicians. 

 IDR Operations Rule – In Progress 

ASA with the American College of Emergency Physicians and the American College of Radiology have urged the U.S. Departments of Health and Human Services, Labor, and Treasury (the Departments) to act expeditiously to finalize the release of Independent Dispute Resolution (IDR) Operations Final Rule (CMS-9897). The release has been delayed longer than stakeholders had initially anticipated. ASA, ACEP, and ACR argue that there are vital reforms included in this regulation that will help improve some of the current deficiencies in the Federal IDR process. Thus, ASA with the other societies strongly urged the Departments to release the final rule as soon as possible (but no later than September 1, 2024), with all the policies becoming effective no later than 30 to 60 days from the date of publication in the Federal Register. 

The joint correspondence follows ASA’s formal submission of detailed comments with recommendations of how to improve upon the proposed policies and urged the Departments to take these under full consideration and adopt them in the final rule. Many of the policies in the proposed rule, if finalized as proposed, would address some of the significant issues ASA members continue to experience with the Federal IDR process. ASA believes that the pending regulation, while not resolving all the issues with the Federal IDR process, represents a significant step forward in improving the IDR process. In particular, the proposed rule will address: 

1. Whether the consumer protections against balance billing and out-of-network cost sharing under the No Surprises Act apply to a particular service. 

2. How cost-sharing and the insurer’s out-of-network rates are determined. 

3. How and with whom to initiate Open Negotiation; and 

4. Which items or services eligible for the Federal IDR process can be batched into a single dispute.