A three-judge panel of the U.S. Fifth Circuit Court of Appeals ruled Aug. 2, for radiologists and other physicians in a lawsuit under the federal No Surprises Act (NSA). The court issued its opinion in the Texas Medical Association’s (TMA) challenge to federal government regulations about the qualifying payment amount (QPA), or median rate, for reimbursing for radiology services. TMA and the American College of Radiology® (ACR®) thus far have won all NSA-related court decisions.
TMA in 2022 sued federal departments that issued flawed independent dispute resolution (IDR) regulations to implement the NSA. TMA maintained that the law clearly stated arbitrators must equally consider all factors in the IDR process, but the government’s regulations did not do this. ACR joined with the American Society of Anesthesiologists (ASA) and the American College of Emergency Physicians (ACEP) to submit a friend of the court brief in the trial and appellate courts supporting TMA (ACR did this as well in three other NSA-related lawsuits). In 2023, a federal judge held that the government's revised IDR regulations — particularly the QPA provisions — violated the NSA. Those regulations still — and wrongfully — placed the QPA as the first of several payment factors that arbitrators are to consider in resolving physician-insurer disputes.
The appellate panel gave significant weight to the trial court’s “…able opinion…” It agreed with that judge that TMA had legal standing to bring its lawsuit because TMA members likely would suffer financial harm through a lower, QPA-driven rate. Additionally, the appellate panel ruled that the regulatory departments exceeded their authority in placing a “thumb on the scale” in favor of the QPA as the first factor arbitrators must evaluate. The panel also held that the trial court properly invalidated the revised QPA regulations nationally.
Notably, the appellate court cited with approval the ACR/ASA/ACEP amicus brief. Our brief asserted that imposing a benchmark rate would push “smaller, independent providers to consolidate with larger systems, increasing healthcare costs…” The court cited the brief to support its conclusion that the government’s QPA approach unlawfully overturned Congress’ well-considered list of payment factors.
The government now must decide whether to request rehearing of this decision before the full appellate court.
If you have questions or would like more information, contact
Katie Keysor, ACR Senior Director of Economic Policy.
