Appeals court vacates certain No Surprises Act provisions on qualifying payment amounts

The 5th U.S. Circuit Court of Appeals Aug. 11 ruled to vacate certain regulations implementing how the No Surprises Act qualifying payment amount is calculated. The QPA reflects an insurance plan’s median contracted rate for a specific service in the same geographic region within the same insurance market and serves as one of the factors considered during the NSA’s independent dispute resolution process. The court held in its opinion that it was improper for the Departments of Health and Human Services, Labor and the Treasury, as well as the Office of Personnel Management, to permit insurers to include “ghost rates” when calculating the QPA. “Ghost rates” occur when a provider’s contract with a plan includes rates for services that the provider does not offer and, therefore, may not reflect a market rate. The court also held that bonuses and incentives must be included in rates when calculating QPAs. The court declined to vacate other provisions, including the inclusion of single-case agreement rates in the QPA calculation. 

A statement posted Aug. 13 on the Centers for Medicare & Medicaid Services website said that the agencies are reviewing the court’s opinion and judgement and anticipates issuing guidance shortly.