Page 3 - September Physician Newsletter 2023

Physicians score third victory in

federal No Surprises Act litigation

On Aug. 3, 2023, the United States District Court for the Eastern District of Texas
again ruled in the TMAs’ favor regarding a drastic increase in the IDR administrative
fee and the restrictive batching rules.
Both the fee increase and the batching rules were
vacated on the basis that they were issued without
necessary notice and comment. In their fourth
lawsuit (TMA IV), the TMA challenged a Sept. 2022
rule that all parties involved in arbitration pay an
administrative fee of $350 and that claims could not be
batched unless they were related.
The Biden administration set the initial arbitration fee
at $50 for 2022 and 2023. However, the administration
announced in Dec. 2022 that the fee would be $350 for
2023. The TMA challenged the Sept. rule and the decision
to increase the administrative fee on two main grounds.
First, the TMA argued that the rules were unlawfully
issued without notice and comment rulemaking and
therefore must be set aside under the Administrative
Procedure Act. Second, the TMA contended that the rules
are “arbitrary and capricious” because the administration
failed to consider the adverse effects their decisions would
have on providers’ ability to utilize the IDR process.
The TMA argued that both the fee hike and the limits Join
on the batching of claims made the IDR process cost-
prohibitive for small-value claims. As a result of the TMA Team
IV decision, the agencies temporarily closed the IDR process to new cases on Aug. 9,
2023. Kelsey

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Feds suspend surprise billing arbitrations after to make practice
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Immediately following a pair of court victories the Texas Medical Association
(TMA) won against federal agencies tasked with implementing the federal No Surprises Learn more at
Act, the Centers for Medicare & Medicaid Services (CMS) has again suspended the
arbitration process for deciding out-of-network payment disputes between physicians kelseymdsolutions.com.
and insurers under the 2020 federal law. 964244419
The most recent victory was announced on Aug. 25 when Judge Kernodle vacated
parts of the final rule implementing provisions of the law, including the qualified
payment amount’s inclusion of “ghost rates,” or contracted rates for specialized services HR that turns
that providers rarely or never provide, and sent them back to the Health and Human
Services, Labor and Treasury departments. pitfalls into
“The departments have temporarily suspended all federal IDR process operations possibilities
in order to make changes necessary to comply with the court’s opinion and order.
Disputing parties should continue to engage in open negotiation,” states an Aug. 25
announcement posted on CMS’ No Surprises Act webpage.
The pause means disputing parties are unable to initiate new disputes, regulators said Learn more at
in an Aug. 30 email notice, adding they are “currently reviewing” the August decisions and insperity.com or
“evaluating current IDR processes, templates, and system updates that will be necessary to call 281.312.2051.
comply” with the court orders.
CMS initiated similar IDR suspensions after TMA won its first two cases involving
implementation of the No Surprises Act interim final rules governing arbitrations
between insurers and physicians.
CMS said the federal agencies “will issue updates in the near future and will provide
specific directions to certified IDR entities and disputing parties for resuming IDR-
related activities in a manner consistent with the court’s judgment and order.”
For information and news regarding the No Surprises Act, visit TMA’s resource page
at https://www.texmed.org/surprise/.
Source: TMA

Harris County Physician Newsletter • September 2023 • www.hcms.org 3