Admin's Latest Surprise Billing Regulation Stirs Up Controversy

by Peter Johnson

The Biden administration on Sept. 30 issued the latest interim final rule (IFR) to implement the No Surprises Act, and the regulation makes clear that arbitrators will have to use the qualifying payment amount (QPA) — a calculation largely based on median in-network reimbursement rates — as their starting point when settling disputed out-of-network claims.

The IFR stipulates that "when making a payment determination…[arbitrators] must begin with the presumption that the QPA is the appropriate [out-of-network] amount," according to an HHS fact sheet.

IFR stirs up controversy:

• Provider groups denounced the rule, while health insurance groups praised the regulation.
• "I think it's relatively positive," says Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for Health Policy. "I think it is trying to provide some coherent framework to interpret factors in arbitration that really don't make sense unless you put them in context."
• "It obviously got a lot of provider groups mad," Adler continues, "but at the same time, I'm pretty sure this is basically the framework most arbitrators would have come to naturally."

Providers strongly opposed QPAs:

• "It uses the QPA, which automatically gets you back to what plans are currently paying," says Ben Lupin, an attorney and senior regulatory adviser for health and group benefits at Willis Towers Watson. "I think the provider side of this is saying, 'Well, that's not always really the accurate amount for out-of-network services, and there's a whole lot of other factors that go into this.' But these rules are saying, unless it's some sort of crazy scenario, you really shouldn't take into account [additional factors]."
• "What this rule essentially confirmed was median in-network rate is the primary piece of information, and that other stuff is supplemental," says James Gelfand, executive vice president for public affairs at the ERISA Industry Committee. "In order to change the rate that the arbitrator selects, the burden is on the party that says they should be getting more….The people who are the most upset about this are the private equity-owned physician staffing groups."
• If the QPA does become something close to a benchmark rate, and is predictably chosen by arbitrators, "it becomes the coyote chasing the Road Runner" to reflexively go to arbitration, Lupin adds.

From Health Plan Weekly