We’ve previously detailed how recent legislation has impacted healthcare markets, ranging from the new processes brought about by the No Surprises Act (NSA) to the various changes brought about by legal alterations to the Independent Dispute Resolution (IDR) process. Now, a recent court case has brought about even more changes to the market. Today, we’ll lay out exactly how the healthcare landscape has changed and what this means for you.
For background, the No Surprises Act had previously established a “Qualifying Payment Amount” — a service-specific dollar value unique to each medical service offered around the country.
This number value became very important for providers, as the law established the QPA as a reference point for what a service had cost in the past, which could then in turn be used as a reference point going forward. Critics objected to this for many reasons; for example, a service may be incidentally included in a practice’s agreement with an insurance carrier even if they do not actually perform the service. The calculation to determine the QPA does not account for this, skewing the QPA.
This is where the No Surprises Act comes in. The NSA outlined that arbiters guiding the IDR process between providers and insurance plans would use the QPA, among many other factors, to determine what a fair payment for a service should be. We were among the aforementioned critics, noting previously that the CMS interim final rule 2 (IFR 2) contradicted the NSA by placing undue weight on the QPA in IDR as the “presumptive payment” — in essence benchmarking payments for services.
Many others agreed with our assessment of the situation, and as a result, CMS has ended up in some legal hot water. CMS recently lost a court case that alleged the IFR2 did not meet the standards of the law. As a result, a judge ordered relevant parts of the IFR2 to be vacated.
Since this judgment was passed down, CMS has complied with the order, removing all relevant parts of IFR 2.
In practice, this means that CMS will rewrite the September 2021 final rule guidance defining the QPA as the “presumptive final payment” amount, as well as providing new guidance for the IDR process. This might mean that CMS guidance will require equal consideration of all NSA statutory factors in the IDR adjudication.
That said, the current status is uncertain, which also explains why the IDR Portal is not available at present (CMS has noted that they will make the Portal available after guidance has been updated and arbiters have been adequately trained in the new standards). This was all laid out in a memo released at the end of February.
While the resolution of this lawsuit meant big changes for the law, it may not be the only major shift on the horizon. This lawsuit was just one of the many cases that have been filed concerning the NSA and its many interim rules. At time of writing, there are five additional lawsuits in motion that may have a major impact on the law.
We do not yet know the future and the exact rollout of the NSA, but rest assured that no matter what happens, we will keep you up to date as events unfold.