The ACR has won many notable legislative victories, including continued coverage of mammography screening at age 40 and avoidance or reduction of cuts to Medicare reimbursement. But just because Congress passes a bill and the president signs it, that doesn’t mean we can rest on our advocacy laurels. The ACR must strive for regulations that fulfill a statute’s text and intent. A great current example is how the No Surprises Act (NSA) and its flawed implementation rules have taken the College and its members on a new journey of advocacy in courtrooms.
As the ACR reported to members in the December 2022 Bulletin, the NSA holds patients harmless from any unexpected or “surprise” medical bills for out-of-network services they receive, such as imaging services in emergency departments before they can consent and be transported to an in-network facility.1 Patients also benefit by not getting their balance billed for scheduled out-of-network services that occur at an in-network facility if they receive no notice of and have not consented to those services.2
The ACR advocated strongly in Congress for these patient protections within the law. Yet, the College also sought to protect our members through a mechanism for resolving reimbursement disputes with insurers. Congress agreed. The NSA stipulates that physicians are to receive payment within 30 days of submitting a “clean” or eligible claim.3 If physicians disagree with the payment, they may dispute it after a 30-day period of negotiation with insurers.4 The NSA establishes an independent dispute resolution (IDR) process that calls for arbitrators to consider a “baseball-style” offer from each party and select the better one.5
How did judges get involved with this law? The U.S. Departments of Labor, Health and Human Services and Treasury, and the Office of Personnel Management, issued two regulations in 2021 to implement the NSA — but did not do so properly. The departments decreed in an October 2021 interim final rule that IDR arbitrators must give more weight to the qualifying payment amount (QPA) than to other considerations such as a radiologist’s training and experience or the complexity of a patient’s specific case.6 The rule defined the QPA as the median in-network rate for a service for a specific insurer based on contracted rates with physicians of the same specialty and geographic area as of January 2019, adjusted for inflation.7
However, the ACR and other specialty societies maintained in comments that the government’s QPA favoritism would enable insurers to reimburse care at lower rates and thereby could deprive patients of access to that care (see comments and analysis). The ACR and other societies asserted that although Congress specified in the statute that arbitrators were to consider all factors equally, the regulators ignored that direction.
But the executive branch did not budge. In fact, it gave the public no customary opportunity to comment on the rule. Rather, the departments claimed there was no time before the IDR process had to begin on Jan. 1, 2022. Yet, the rule should not stand because Congress had spoken clearly. So the judicial branch was next.
The College took the unprecedented step of suing a government agency. We joined the American Society of Anesthesiologists (ASA) and the American College of Emergency Physicians (ACEP) to bring an action in Illinois federal court in December 2021.8 We alleged that the government lacked statutory authority to issue a regulation that disregarded the clear IDR provisions in the law. The AMA and the American Hospital Association had sued previously on similar grounds in federal court in Washington, D.C.9 First in line was the Texas Medical Association (TMA), which sued similarly in Texas federal court.10
The ACR advocated strongly in Congress for these patient protections within the law. Yet, the College also sought to protect our members through a mechanism for resolving reimbursement disputes with insurers.
Why did ACR sue with ASA and ACEP? The reasons were common interests and combined resources. While we prepared for a spring 2022 hearing in our case, the TMA won a convincing decision on its own. The judge in “TMA I” ruled in February 2022 that the government’s pro-QPA parts of the regulation violated the law because it arbitrarily and capriciously set a standard that Congress did not.11 Consequently, the judge invalidated those provisions and returned the rule to the agencies. This ruling applied nationally.
Did the government get the court’s message? Yes and no. It abandoned its “rebuttable presumption” standard in an updated final rule in August 2022. However, the government still placed that improper thumb on the scale. It told IDR arbitrators to consider the QPA first among all criteria. The government also mandated that arbitrators must disregard case complexity and specialty factors if the QPA already accounted for that other information.12
Back to the courts. The TMA filed a second lawsuit in September 2022 (“TMA II”). The ACR supported the TMA with an amicus (friend of the court) brief, along with ASA and ACEP. Our coalition (the ACR, ASA and ACEP) renewed its “TMA I” arguments, emphasizing that the government could not do indirectly what the TMA I court ruled it could not do directly. We withdrew our Illinois case because the TMA’s win offered the best prospect for prevailing against the NSA rule.
On Feb. 6, 2023, the TMA court struck down the revised IDR provisions. The court concluded that they would deprive the plaintiffs of the IDR arbitration process that Congress established and insert a new process that “unlawfully ‘puts a substantial thumb on the scale in favor of the QPA.’”13
Second, the plaintiffs established that they “will likely suffer financial harm because the final rule creates an arbitration process that will cause ‘the systemic reduction of out-of-network reimbursements.’” Notably, the court cited our coalition’s brief, among others, to find that the QPA fails to reflect providers’ costs of rendering services in most cases. Arbitrators must consider all circumstances — not only or initially the QPA — in deciding which offer to select. The court further cited the government’s own admission during the hearing that it wanted to reduce costs.
Since the government missed two opportunities to write balanced rules, the TMA sued it again in November 2022. “TMA III” challenges the flawed QPA methodology in the July 2021 interim final rule and lack of transparency in QPA calculations.14 Then the government in late December 2022 dramatically and significantly raised the fees on ACR members and other physicians to file an IDR dispute. The 600% fee hike, with the 2021 rules’ very restrictive conditions on “batching” or combining claims of similar medical services, motivated the TMA to bring a fourth suit (“TMA IV”) against the government on Jan. 30, 2023.15
Advocacy in court involves its own unique strategy. Like the ACR’s efforts in the halls of Congress and agencies such as CMS, a compelling story is invaluable. We believe our members and
their practices have benefited from our newfound advocacy — as will their patients. Good facts tend to make good law.