Major Medical Societies to Support Texas Medical Association Federal Surprise Billing Lawsuit

Groups Work to Protect Patient Access to Care and Stop Insurer Profit Grab at Patient and Provider Expense

The American College of Emergency Physicians, American College of Radiology^® (ACR^®) and American Society of Anesthesiologists support the new Texas Medical Association (TMA) suit filed Oct. 12, stating that the Surprise Billing Final Rule independent dispute resolution (IDR) process still fails to comply with No Surprises Act (NSA) statutory text. The new TMA suit is filed in the same Texas Federal Court that ruled in favor of the TMA thus vacating parts of the IDR process published in the Surprise Billing Interim Final Rule issued last September. ACEP, ACR and ASA filed a joint amicus brief with the Texas court in support of the TMA on October 19.

Additionally, ACEP, ACR, and ASA will dismiss their joint lawsuit in the U.S. Court for the Northern District of Illinois challenging the interim final IDR rule because that rule is no longer in effect. ACEP, ACR, and ASA will monitor the TMA suit and stand ready to challenge the final rule in the Northern District of Illinois if necessary.

The final rule, issued in August, skews the IDR process to favor the insurer-calculated Qualifying Payment Amount (QPA) over other factors Congress specifically directed IDR arbitrators to consider equally with the QPA. Insurers are using the new law to raise profits by initiating reductions in contracted fee schedules and narrowing medical networks, which denies patients their choice of providers and can delay diagnosis and treatment of illness and injury.

In possible violation of the NSA, insurers are likely using lower primary care provider contract rates (for specialty services those practices never offered nor performed) in calculating QPA.
Blue Cross Blue Shield of North Carolina, Blue Cross Blue Shield of Tennessee and CIGNA of Tennessee are the first to cite the new law in demanding providers accept drastic cuts in payment for services provided or risk contract termination.

Many practices, reeling from COVID-19’s economic impact, cannot withstand this insurer multi-edged profit grab and may be dropped from networks. These insurer restrictions impact all care (not just out-of-network care), including cancer screenings, which plummeted during the pandemic and may yet lead to more cancer deaths.

There is no evidence that insurers use profit margin increases, obtained at patient and provider expense, to lower beneficiary costs. In fact:

Medical imaging costs are down significantly in recent years, including in 2020. Yet insurance premiums continue to rise — along with insurance company revenue.
Studies have demonstrated that the anesthesiologist’s role in the care of surgical patients results in lower length of stay, fewer complications, and better overall outcomes. Unfortunately, the financial strain may result in lack of access to in-network anesthesiologists, practice reductions and closures.
Health insurers’ net incomes and profit margins have grown every year since 2015, including record profits in 2020, even as their costs dropped.

The Texas case again solely impacts the IDR process to determine provider reimbursement for out-of-network care. The suit does not impact No Surprises Act patient protections, which ACEP, ACR and ASA continue to fully support, nor raise patient out-of-pocket costs.