Breaking Down the Concerning and Flawed Second Interim Final Reg Implementing the No Surprises Act

POSTED: October 7th, 2021
POSTED IN: Forum Topic,

As many of you already know, last week, the Departments of Health and Human Services (HHS), Treasury, and Labor (the Departments) and the Office of Personnel Management (OPM) issued an interim final regulation (IFR) implementing part of the No Surprises Act. This second IFR mainly focuses on the federal independent dispute resolution (IDR) process.

ACEP’s full summary of this reg is available here, and while I could use this post to highlight all the key policies in the reg, there is one major issue I want to focus on. We (along with most of the provider community) are extremely concerned with how much weight the reg has given to what’s called the qualified payment amount (QPA) in the IDR process.

The QPA was defined by Congress in the No Surprises Act as the median contracted rate for a given service in the same insurance market in a specific geographic area. It is used for two purposes: to determine cost-sharing for patients for out-of-network services, and as one of the factors an arbiter can use to choose between the offer submitted by a health plan and the offer submitted by a provider. With respect to the IDR process, other factors listed out in the No Surprises Act that the arbiter must consider can include:

• The level of training, experience, and quality and outcome measurement;
• Market share held by the provider or facility or the plan or issuer;
• Patient acuity or the complexity of the service;
• Teaching status, case mix, and scope of services of the nonparticipating facility; and
• Previous contractual relationships (demonstrations of good faith efforts (or lack thereof) made by the providers or the health plan to enter into network agreements and contracted rates between the provider and the health plan.)

Click here to read the full ACEP Regs and Eggs Update.