Managed Care Outlook 2024

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While provider litigation regarding the No Surprises Act (NSA) could increase in 2024, payors may also pursue litigation, and regulatory enforcement of the NSA should remain low.

The NSA, which among other things, prohibits out-of-network providers from sending surprise medical bills to patients, has been the subject of frequent litigation since its enactment in December 2020. Providers have initiated several lawsuits against the federal government challenging NSA regulations. Most notably, the Texas Medical Association (TMA) lawsuits in the Eastern District of Texas vacated many aspects of the rules, resulting in a more favorable landscape for providers in the independent dispute resolution (IDR) process for resolving out-of-network billing disputes with payors. The August 24, 2023 TMA III decision upended the complex methodology for payors’ calculation of the qualifying payment amount (QPA), which determines patients’ financial responsibility and is a key factor in IDR. Providers have also pursued litigation against payors alleging violations of the law with respect to IDR awards and QPA calculations.

While providers’ regulatory challenges may wind down in 2024, litigation against payors is likely to increase. Recent IDR activity indicates some providers are positioning themselves for litigation – for instance, by routinely seeking detailed disclosures regarding QPA calculations during the pre-IDR open negotiation process, and by challenging when payors allegedly do not pay IDR awards within the requisite 30-day period.

Key takeaways
  • We predict providers will file more lawsuits challenging late payor payments following IDR awards
  • Increasing provider demands for QPA disclosures may lead to litigation
  • Payors have opportunities to pursue litigation regarding misbehavior in IDR and challenging provider-friendly aspects of the law
  • Regulatory enforcement should remain low while QPA regulations are in flux
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