The Latest Twist In The NSA Saga: What Anesthesia Providers Should Know
Along the edges of America's more mountainous regions are roads that motorcyclists call "the twisties"—named for the large number of hard turns that come at you in rapid succession. These types of winding roads are highly valued by riders as they afford the thrill of leaning into the curves at respectable speed. But it is not only the biker community that enjoys a good twist. Readers of novels and viewers of films also get a kick out of the occasional curve ball thrown into the storyline. With this in mind, we thought it might be of some interest to our readers to share the latest plot twist in the ongoing NSA drama.
The Past Is Prologue
As you'll recall, the No Surprises Act—which generally outlaws the "balance billing" of an insured patient by a non-participating provider—became effective last year. As a means of fleshing out the law and implementing its provisions, federal agencies produced a series of regulations over a period of several months. However, certain sections of these rules were not well received in some quarters, with several local and national healthcare organizations asserting that portions of the regulatory language were (a) not in keeping with both the spirit and letter of the law, and (b) unfairly favored the insurance community at the expense of medical providers. As a result, several lawsuits were filed in various jurisdictions, requesting the vacating and correcting of the offending passages. One of these legal actions led to a pause in certain provisions and ultimately the promulgation of new regulatory language.
One would think that the short history of the NSA's implementation has been turbulent enough, that we've seen the last of this regulatory rollercoaster ride. However, we now learn that additional lawsuits against the federal government have been filed, which have once again changed the rules of the game.
The Latest Chapter
The Texas Medical Association (TMA), whose initial suit led to a previous revision of the NSA regulations, filed a fourth lawsuit over the Act in late January. The predicate for this latest action by the TMA deals with the dramatically enhanced costs required of parties entering into the independent dispute resolution (IDR) process. As you'll recall, the IDR mechanism is designed as an arbitration process that parties can access in an effort to solve billing disputes between providers and payers. The process would typically be utilized when the non-participating provider believes that the payer's reimbursement of a service is too low.
In the original regulatory provision addressing the cost of the IDR process, the fee for each party was set at $50. As you may remember, the Centers for Medicare and Medicaid Services (CMS) recently increased this administrative fee to $350. We said at the time that this would work to suppress provider interest in the IDR process and thereby give an unfair advantage to the insurance companies. The TMA apparently agreed. In their latest lawsuit, they allege that this change in the IDR fee "not only will make the process significantly more expensive for all IDR participants but will make it cost-prohibitive for many providers to access IDR at all." However, it is not this fourth suit by the TMA that is causing the real firestorm involving the NSA regulations, but a suit that the TMA argued before the court in the final weeks of 2022.
The Latest Twist
In a separate action filed in September and heard by a federal district court this past December, the TMA argued that the IDR process set up within the NSA final rule favored payers over providers by tying reimbursement determinations to the qualifying payment amount (QPA), which is essentially the median in-network rate set by the health plans.
Earlier this month, a U.S. District Court judge for the Eastern District of Texas ruled in favor of the TMA, vacating portions of the final rule and remanding it back to the government. The court had previously ordered the U.S. Department of Health and Human Services (HHS) to remove language in an earlier iteration of the rule that gave preeminence to the QPA as a starting point in determining the reimbursement rate within the IDR process. While the agency removed the language at issue, the TMA felt it did not go far enough in adhering to the court's ruling. In this latest decision, the court agreed. Judge Jeremy Kernodle's opinion states, in part, "they have not relinquished their goal of privileging the QPA, tilting arbitrations in favor of insurers, and thereby lowering payments to providers." The judge went on to vacate portions of the regulations that deal with the IDR process.
As a result of this ruling, CMS has asked those involved in mediating disputes over appropriate reimbursement rates for services to put their deliberations on hold while the agency begins the process of evaluating and updating its IDR guidance; that is, to bring such guidance into compliance with the judge's decision. As part of this pause, IDR entities, i.e., the arbiters who have received government approval to make reimbursement determinations as part of the IDR process, should "recall any determinations made after Feb. 6" and await further guidance from the applicable federal agencies. The result of all this is that we find ourselves, once again, in a holding pattern as far as the IDR process is concerned, and we can expect yet another set of revised rules at some point in the future. So, hold on as we prepare for another sudden turn.
If you have questions about the NSA and its regulations or the IDR process, in particular, please contact us at info@anesthesiallc.com.