ACR Advocacy for Members Continues in No Surprises Act Case

The American College of Radiology^® (ACR^®) continues its advocacy in the surprise patient billing arena. Congress in 2020 passed the ACR-supported No Surprises Act (NSA), a law that exempts patients from surprise medical bills for certain out-of-network services they received and creates an equitable independent dispute resolution (IDR) process to resolve payment disputes between healthcare providers and insurers.

The IDR process was to use a qualified payment amount (QPA), but the initial regulations issued by federal agencies to implement the NSA were problematic because they ignored the law’s intent in establishing the process. This led to multiple ACR-supported lawsuits filed by the Texas Medical Association (TMA).

The U.S. Court of Appeals for the Fifth Circuit this month voted to reconsider part of the only pending challenge (TMA III) to the federal government’s implementation of the NSA. The appellate judges will rehear as a full court certain aspects of the TMA III case that involve TMA’s challenge to the government’s methodology for calculating the QPA.

A three-judge panel in October partly ruled for the government in the TMA III case, deciding that it acted lawfully by including in the QPA calculation services that a physician does not provide to patients. However, TMA maintains that the panel misread the NSA’s statutory provisions regarding the QPA calculation, particularly of “ghost rates” for such services. Physicians who do not render a service have little incentive to negotiate a rate for those services, which makes these ghost rates generally lower than they would be through a customary, motivated negotiation. Therefore, TMA petitioned the full court to rehear that portion of the panel’s decision.

In this new phase of TMA III, the entire Fifth Circuit will address whether the government’s QPA calculation rules are unlawful because they require insurers to (i) include “ghost” rates agreed to by physicians for services they do not “provide” as the statute defines that term; and (ii) exclude incentive payments from the “total maximum payment” used to calculate the QPA.

TMA and the government must submit their opening and reply briefs by Sept. 2. ACR, along with the American Society of Anesthesiologists and the American College of Emergency Physicians, intends to submit an amicus brief to the appellate court this summer.

If you have questions or would like more information, contact Tom Hoffman, ACR Executive Vice President, Governance and Membership Services, or Susannah Jones, ACR Principal Attorney.