Reed Smith Client Alerts

Key takeaways

  • QPA enforcement discretion has been extended until August 2025.
  • Special regulatory emphasis is being placed on NSA payment disclosures.
  • Cost-sharing adjustments following IDR determinations are prohibited.
  • Regulators provide examples of access restrictions under the gag clause prohibition.

On January 14, 2025, the Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued new FAQs regarding the implementation of the No Surprises Act (NSA) and the Transparency provisions of the Consolidated Appropriations Act, 2021 (CAA). The FAQs address qualifying payment amount (QPA) enforcement discretion, required NSA disclosures to providers and parameters of the gag clause prohibition.

Impact of TMA III decision and appeal

As discussed in a prior alert, the August 24, 2023 Texas Medical Association III decision by the United States District Court for the Eastern District of Texas vacated several provisions of the July 2021 interim final rules and related guidance documents regarding calculation. This decision had significant implications for the QPA methodology, and the Departments deferred enforcement of the new methodology until November 1, 2024 (see related alert).

On October 30, 2024, the Fifth Circuit reversed several of the key holdings of the district court. This again upended the QPA requirements in a third iteration of the methodology just as payors had spent more than a year ensuring compliance with the TMA III district court’s calculation rules. The appeal reinstated some 2021 QPA provisions while other critical calculation rules remained vacated by the 2023 decision. However, the Fifth Circuit’s mandate has not yet issued because a motion for rehearing en banc is currently pending.

To address these challenges, the FAQs provide that the Departments have extended enforcement discretion for payors using the original 2021 methodology to August 1, 2025. Payors may also continue to rely on QPAs calculated using a good faith, reasonable interpretation of the district court’s 2023 methodology until the Fifth Circuit's mandate issues. Once the mandate is issued, enforcement discretion will also apply to QPAs calculated using the 2023 methodology for dates of service before August 1, 2025.