August 22, 2022

ACEP Reacts to Final Rule of No Surprises Act

Update | Monday, Aug. 22: ACEP's Federal Affairs team has written a comprehensive summary of the final rule.


Friday, Aug. 19

Today, the federal government issued a final rule implementing part of the No Surprises Act addressing a problematic policy included in previous regulation that gave unequal weight to the Qualified Payment Amount (QPA) during the independent dispute resolution (IDR) process, tilting the process unreasonably in favor of insurance companies. ACEP joined with the American College of Radiology and the American Society of Anesthesiology to file a lawsuit against the government on this issue, as did several other organizations. In late February, the US District Court for the Eastern District of Texas, in response to one of these suits filed by the Texas Medical Association, ordered that the flawed policy be withdrawn and invalidated immediately on a nationwide basis.

ACEP is pleased that the final rule specifies the QPA will no longer be the presumptive factor. Less favorably, the rule claims that some additional factors, such as patient acuity, could already be reflected in the QPA, and therefore allows IDR arbitrators to omit them from consideration when choosing the proper payment amount. The rule does call out insurers for requiring providers to use a proprietary web portal to initiate open negotiation, and reaffirms they cannot require that.

Notably, in a major win for emergency medicine, the rule adds an official definition of downcoding and adds a new requirement that if a QPA is based on a downcoded service code or modifier, the plan must provide an explanation of why the claim was downcoded, and the amount that would have been the QPA had the service code or modifier not been downcoded. The rule notes that without information on what the QPA would have been had the claim not been downcoded, the provider may be at a disadvantage during open negotiation compared to the plan or issuer. ACEP had strongly advocated for this additional disclosure requirement from health plans, and we are happy that the Departments have adopted the new policy.

ACEP is still reviewing the rule, as well as additional information that the Departments released in conjunction with the rule. A more detailed analysis is coming soon.


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