NO SURPRISES ACT (NSA) LEGAL UPDATE
By Edward Marasco, MPM, CMTE, EMT-P (ret.)*
Well, I am not a lawyer, but I have stayed at a Holiday Inn Express in the last ten (10) years . . . .
As many of our loyal readers know the Federal No Surprises Act (NSA), which was enacted as a part of the Consolidated Appropriations Act of 2021, was designed to address “surprise medical bills”. Generally, the Act limits the amount an insured patient will pay for emergency services furnished by an out-of-network provider/supplier. Unfortunately, the resulting regulations have created many challenges for providers/suppliers and health plans alike. The regulatory process and timelines prescribed in the Act created a less than ideal process that essentially excluded many stakeholders from the ability to offer valuable input.
As a result, a number of stakeholders found it necessary to file suit against the U.S. Department of Health and Human Services (DHHS) in an effort to have their concerns addressed. The plaintiffs in various suits include the American Medical Association (AMA), the Texas Medical Association (TMA), the American Hospital Association (AHA), as well as many other professional associations and individual providers/suppliers. After much deliberation and debate, the Association of Air Medical Services (AAMS) also filed suit in 2021. There is a multitude of issues with the NSA regulations; however, one of the most universally concerning for all providers/suppliers is the presumption of the Qualifying Payment Amount (QPA) as the primary tool to be used by arbiters in the Independent Dispute Resolution (IDR) process.
In recent months several of the suits are progressing and the health care community is beginning to see the potential impact of these outcomes. In the TMA lawsuit, the court did find in favor of the Plaintiff on several key points, including the fact that the regulations violated some standards set forth under the Administrative Procedures Act (APA) and that establishing the QPA as the primary determining factor in the IDR process overstepped the intent of the NSA. While this ruling was generally favorable to health care providers/suppliers, the TMA ruling did acknowledge its findings EXCLUDED the air medical transport industry.
LifeNet, Inc filed suit was filed to challenge the QPA presumption as well. Since the LifeNet case had essentially the same fact set as the TMA case, and the Judge ruled in favor of TMA, DHHS sought to transfer the case to another forum. The Judge in the LifeNet case issued a ruling in the last week of July. In “In sum, the Court holds that (1) transfer is not proper, (2) LifeNet has the standing to challenge the Rule, (3) the Rule conflicts with the unambiguous terms of the Act, (4) Defendants improperly bypassed notice and comment in implementing the challenged portions of the Rule, and (5) vacatur and remand is the proper remedy. Accordingly, the Court DENIES Defendants’ motion to change venue or transfer (Docket No. 22), GRANTS LifeNet’s motion for summary judgment (Docket No. 27), DENIES Defendants’ cross-motion for summary judgment (Docket No. 31), and ORDERS that the following provisions of the Rule are VACATED: (1) the final sentence of 45 C.F.R § 149.520(b)(2), (2) the final sentence of 26 C.F.R. § 54.9817-2T(b)(2), and (3) the final sentence of 29 C.F.R. § 2590.717-2(b)(2).”
The ruling would appear to be another indicator that the NSA process and initial guidance will not stand moving forward. On July 28th, CMS issued guidance to IDREs accounting for the outcome in the LifeNet case. While this is a positive outcome, the questions regarding the QPA, how it is used by IDREs, and what the impact will be on payment still remain. Providers/suppliers should continue to be diligent in following the NSA processes and work to obtain the fairest reimbursement possible. As always, the QMC NSA team will continue to follow the process closely and provide updates to our Client Partners.
*Ed Marasco is QMC’s Vice-President of Business Development and a veteran healthcare provider and administrator with over 40 years of experience in emergency medical services, reimbursement, and consulting.
