The No Surprises Act: New FAQs and IDR portal reopening

In newly released frequently asked questions (FAQs), effective October 6, 2023, the US Departments of Health and Human Services, Labor and Treasury and the Office of Personnel Management (the Departments) address calculating the qualifying payment amount (QPA) and the reopening of the independent dispute resolution (IDR) portal under the No Surprises Act (NSA). In FAQs relating to the QPA calculation, the Departments say they disagree with the court's TMA III decision and plan to appeal. They also do not intend to issue interim guidance that addresses the QPA methodology in response to TMA III.

These latest set of FAQs are in response to a third lawsuit by the Texas Medical Association (TMA III) which challenged the requirements that health plans must use to calculate the QPAs, arguing that such amounts are artificially reduced and lead to arbitrations in favor of the insurers with underpayments to providers. As discussed in a prior client alert, the US District Court for the Eastern District of Texas issued an opinion which granted in part the plaintiffs' motion for summary judgment.

Enforcement discretion

Whereas uncertainty remains while the government appeals the TMA III decision, the Departments state that the QPA calculation should be done "using a good faith, reasonable interpretation" of the statutes and regulations that remain in effect. To that end, the Departments will allow for enforcement discretion for QPAs calculated according to the pre-TMA III interim final rules and guidance until May 1, 2024, or possibly beyond until November 1, 2024.

The Departments will also exercise enforcement discretion for the disclosures that plans and issuers are required to make to non-participating providers, facilities and providers of air ambulance services with an initial payment or notice of payment regarding incorrectly calculated QPAs. Accordingly, states that adopt a similar enforcement approach will not be considered as failing substantially. Further, certified IDR entities can consider the QPA and "any other factors and additional information" in determining which party offers the best out-of-network rate. Plans and issuers are also encouraged to continue following the pre-TMA III timeframe when determining coverage and reimbursement for air ambulance.

Reopening of the IDR portal

In FAQs relating to the IDR process, the Departments announced the re-opening of the IDR portal for single disputes, that include those involving bundled payment arrangements. Initiation of batched and  air ambulance disputes remains partially suspended as the Departments continue updating guidance in response to the opinions and orders in TMA III and TMA IV.

Norton Rose Fulbright's healthcare team has the capacity to assist providers in navigating the ever-changing NSA landscape. Please let us know if we can be of assistance.