Litigation is targeting the QPA, and its designation as the going rate for out-of-network providers.
A number of provisions from the No Surprises Act took effect on Jan. 1 of this year. Last fall, however, at least five lawsuits were filed against the legislation by healthcare provider groups.
All of those lawsuits are centered on just one element of the Act, called the qualifying payment amount, or QPA. The QPA is basically the median of the reimbursement rate that a specific payer pays for a service by its providers that are in-network. It can also be a rate pulled from a database that more generally reflects a plan’s median in-network rate.
In its interim Final Rule on the No Surprises Act published this past fall, the administration adopted a policy in which an arbitrator is to presume that the QPA is the appropriate rate that out-of-network providers should be paid.
In other words, the regulation says that an out-of-network claim that falls under the No Surprises Act should be paid in-network rates.
Providers can bring other considerations in to argue for a higher reimbursement, for instance, a patient’s acuity, a provider’s training or education, and other qualitative considerations, but the administration’s current QPA policy is that those other qualitative factors are secondary to the QPA.
Now, in these lawsuits, providers are arguing that Congress did not intend for the QPA to be the de facto rate.
One of the key lawsuits was filed by the American Medical Association (AMA) in December, and many have probably noticed that other provider organizations and companies have signed amicus briefs in support of the suit.
In the suit, the AMA requested that the court put a temporary hold on the QPA policy before the first week in March, at least until the court gets a chance to consider the case more fully.
Generally, the court would only put a stay on the case if they believed that the provider groups had a case that might ultimately win, so we may know whether the AMA’s case — and, by reflection, all of the cases — have any legs by March.
As we’ve said, all of these lawsuits are focused on the QPA policy, which really only affects claims that fall under the No Surprises Act balance billing prohibition.
However, in a Centers for Medicare & Medicaid Services (CMS) Open Call in December, providers expressed much more concern with the No Surprises Act good faith estimate requirement that also went into effect on Jan. 1, and about which much has been written. This requirement mandates that all providers — both facilities and office-based providers, in and out of network, even dentists! — provide uninsured and self-pay patients a good-faith estimate of scheduled services one to three days before a healthcare appointment.
We’ve seen no lawsuits on this policy, but it certainly will be the most widespread and burdensome No Surprises Act requirement that providers will have to implement in the coming year.