NSA Update

NSA Update 

As reviewed in our summer issue, four rulings have been handed down by a federal judge in Texas – all favorable for emergency medicine. The plaintiffs in these four cases were the Texas Medical Association (TMA) and various other providers. The lawsuits and their respective outcomes are as follows:
• TMA lawsuits #1 and #2 – Decided in favor of TMA. Judge vacated arbitration criteria language in regulations. The Federal Government is appealing TMA 2.

• TMA #3 – Judge vacated QPA formula language. The Federal Government is appealing TMA 3. Unfortunately, the Departments have taken a stance that essentially ignores that judge’s instructions. Some aspects of the Departments response include:
‒ Departments will not offer additional guidance for QPA calculation
‒ Insurers to use “good faith” in QPA determination
‒ Departments will provide limited enforcement of QPA calculations
‒ Departments will defer to IDRE regarding QPA appropriateness

• TMA #4 – Judge vacated $350 IDR fee language and batching language – violation of Administrative Procedures Act. The Departments response include:
‒ IDR Portal shut down – has since gradually reopened
‒ IDR administrative fee reduced from $350 to $150
‒ Improved CPT batching criteria for radiology and anesthesiology. Not for emergency medicine.
‒ Small changes to issuer-related batching

The Departments also issued a Proposed IDR Operations Rule that contained some modest, though delayed, improvements to the IDR process. These include:
1. Improvements in transparency of plan type.
2. Other moderate transparency improvements, including mandatory use of appropriate RARC and CARC codes on the remittance advice received from the insurer.
3. Delayed implementation of most items in Proposed IDR Operations Rule – possibly not until August 2024.

BSA Healthcare Opinion
Extensive regulatory and Congressional advocacy efforts by EDPMA and ACEP need to continue. Insurers will apply intense pressure on the Departments to loosen their responsibilities and place downward pressure on the QPA determination. The Departments are unlikely to side with providers unless Congressional political pressure is applied.