Reed Smith News Flashes

The Biden administration has issued a memorandum following a February 23, 2022 ruling that invalidated the presumption that the qualifying payment amount (QPA) is the appropriate award in independent dispute resolution (IDR) under the No Surprises Act (NSA).

In this memorandum, the Departments of Health and Human Services, Labor, and the Treasury (Departments) state that they have withdrawn guidance documents that are based on the invalidated QPA presumption, and that they will promptly update regulatory guidance to conform with the February 23, 2022 ruling in Texas Medical Ass’n, et al. v. United States Department of Health and Human Services, et al., Case No. 6:21-cv-425 (E.D. Tex.). The Departments also state that they will provide training on the revised guidance through webinars and roundtable discussions once the guidance documents are updated. Finally, the Departments note that they will open the IDR Portal at an unspecified point (potentially after updated guidance and training), and any ripe disputes may be submitted within 15 business days of the Portal being opened.

The memorandum clarifies that all other portions of the Departments’ Interim Final Rules unrelated to the QPA presumption remain in effect, including the prohibition on balance billing patients for out-of-network emergency services, air ambulance services, and professional provider services at an in-network facility. The Departments note that they are “reviewing the court’s decision and considering next steps.” It is possible, though not certain, that the Departments will appeal the February 23 ruling.

Litigation that similarly challenges the QPA presumption in other jurisdictions is still pending. However, the consolidated American Medical Association and Association of Air Medical Services cases in the D.C. District Court (Case No. 1:21-cv-03031) are set for oral argument before Judge Richard J. Leon on March 17, 2022.

Newsflash  2022-065