More Groups Sue To Block Admin’s Interpretation Of Surprise Billing Law

Inside Health Policy

December 23, 2021 2:16 pm

The lobbies for emergency room doctors, radiologists and anesthesiologists Wednesday (Dec. 22) challenged the Biden administration’s interpretation of the surprise billing law, alleging the arbitration instructions in the administration’s October interim final rule (IFR) clash with the statute and the administration violated the Administrative Procedure Act by not conducting a full comment and review process.

The lobbies allege the administration is too narrowly interpreting what arbitrators should consider when they settle disputes under the 2020 No Surprises Act, which bans providers from balance billing patients for out-of-network emergency room care or for services done by out-of-network physicians in an in-network facility. The law creates a “baseball-style” independent dispute resolution (IDR) process to handle payment disagreements and lists six factors — including the “qualifying payment amount” or median in-network rate – which it says arbitrators shall consider when determining the winner.

In the IFR, the administration leaned into the QPA, saying that arbitrators should consider that first and weigh the other factors if needed. The latest lawsuit asks the court to strike that section of the rule.

Even before the rule was released, bipartisan groups of lawmakers and other stakeholders were butting heads over whether Congress intended arbitrators to primarily consider the QPA, as argued by insurers, or, as providers say, to equally weigh each listed factor, including patient acuity, provider training, market power and more.

Providers — who argue that the QPA is a de facto benchmark — were incensed by the rule and suits have been flowing in since November. The Texas Medical Association was the first out the gate with a suit filed in the Eastern District of Texas, followed by the Association of Air Medical Services — which filed suit in U.S. District Court for the District of Columbia — and then the American Hospital Association, American Medical Association and other providers also filed suit in the District of Colombia.

The American College of Emergency Physicians, American College of Radiology, and American Society of Anesthesiologists filed their suit in the United States District Court for the Northern District of Illinois.

The plaintiffs ask for injunctive relief and want the courts to vacate the section of the rule that directs arbitrators to look primarily at the QPA.

“It is deeply troubling that the administration would upend the deliberately balanced mechanism to resolve billing disputes established by Congress as part of the No Surprises Act. We are left with a law that will tilt market forces in favor of insurers and they are already exploiting their newfound incentive to push emergency physicians out of network. Legal remedy is necessary so that the IFR does not undermine the entire dispute resolution process,” ACEP President Gillian Schmitz said of the case.

The plaintiffs say the suit will not stop the law’s consumer protections from going into effect on Jan. 1 as required.