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Final Rules on Surprise Billing Effective October 25

On August 19, the U.S. Departments of Health and Human Services, Labor, and the Treasury issued Final Rules addressing several provisions of the provider payment process for out-of-network care under the No Surprises Act (NSA). The rules go into effect on October 25, 2022, and are generally effective for plan years on or after January 1, 2022.

The Final Rules and supporting FAQs respond to several concerns raised by the American Medical Association (AMA) and other physician and provider organizations, such as:

  • Removing the requirement that Independent Dispute Resolution Entities (IDREs) must presume that the Qualifying Payment Amount (QPA) is the appropriate out-of-network rate
  • Clarifying that the initiating party to an open negotiation is always permitted to send the standard Federal initiation notice (i.e., a plan cannot require physicians/providers to use the plan’s proprietary portal)
  • Requiring plans to provide additional information on why a claim was downcoded if the QPA is based on a downcoded service or modifier
  • Clarifying that plans must calculate a median contracted rate separately for each physician specialty

The revisions come after the Texas Medical Association (TMA) and the AMA, in partnership American Hospital Association (AHA), filed separate lawsuits challenging portions of the October 2021 Interim Final Rule which directed the IDREs to presume that the QPA (considered the plan’s median in-network rate) is the appropriate out-of-network rate. The Kentucky Medical Association (KMA) signed on to amicus briefs in both cases. In February, the U.S. Federal District Court for the Eastern District of Texas ruled in favor of the TMA’s lawsuit. The administration filed a notice of appeal challenging the ruling but asked the court to hold its appeal pending the release of the Final Rules. However, on September 22, TMA filed a new lawsuit challenging certain parts of the Final Rules that remain in conflict with the law and skew the results of the IDR process in favor of insurers.

The AMA and the AHA recently filed a motion to dismiss their suit stating that it became moot with the release of the Final Rules. Despite the motion to dismiss, the two organizations released a statement indicating the possibility of future legal action on portions of the Final Rules that still depart from Congress’ original intent.

For additional information and resources on navigating the various provisions of the No Surprises Act, visit the KMA website.

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