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Dive Brief:

  • The Texas Medical Association is suing the HHS over the final rule implementing a federal surprise billing ban, alleging the mechanisms for arbitrating payments unfairly favor insurers.
  • It’s the second lawsuit in less than a year that the TMA has filed regarding the No Surprises Act. In February, a judge tossed out part of an interim rule that spelled out the arbitration process, in what was seen as a win for providers.
  • The lawsuit, filed Thursday, includes two additional plaintiffs — a physician who owns part of a freestanding emergency room in Tyler, Texas, and Tyler Regional Hospital. The American Hospital Association and American Medical Association said in a statement they plan to file an amicus brief in the case.

Dive Insight:

The NSA, which went into effect in January, aims to protect patients from unexpected and costly medical bills when they unknowingly receive care from an out-of-network provider. Instead of seeking payment from the patient, providers and payers can go through an arbitration process called independent dispute resolution.

The fight between payers and providers over the IDR has been ongoing for years. As the law was being drafted, insurer lobbies pressed for a set rate instead, but providers won out. However, the rules implementing the NSA put forward a more narrow process, and provider groups are pushing back.

An interim rule called for arbiters to primarily consider the qualifying payment amount, which is the median in-network rate in the same geographic area. The TMA and others argue this was not the intent of Congress, as the law calls for taking multiple factors into account, including acuity, market share and provider experience.

The final rule, released in August, dropped the language that the medical group had objected to, but still called for arbiters to consider the QPA first and instructed them to explain their reasoning for including other measures.

“We are, once again, asking for the law to be followed as Congress intended, and for the challenged provisions to be invalidated,” TMA President Gary Floyd said. “There should be a level playing field for physicians and health care providers in payment disputes after they’ve cared for patients.”

This week, the AHA and the AMA asked for a similar lawsuit to be tossed now that the final rule is out.

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