So, pressure started to build for Congress to establish its own federal standard. And a deal was eventually reached after years of negotiations and compromises between insurance payers, physicians, and lawmakers. The NSA was signed into law at the end of December 2020.

The NSA helps protect patients from unexpected coverage gaps by ensuring that their cost-sharing amount is the same for OON care as it would otherwise be for in-network care.

To achieve this, the law created the concept of the “recognized amount,” which allows insurance payers to calculate the cost-sharing amount for OON care. And to determine the recognized amount, payers must calculate the qualifying payment amount (QPA), the median contracted rate for the service (as of January 31, 2019, adjusted for inflation).

However, payers quickly shifted from using the QPA as a tool to determine the patient cost-sharing amount and instead started using the QPA as the de facto value for the service. This was a subtle nuance, but it would eventually become the Trojan horse in the current struggle between insurance payers and physicians

The NSA Helped Remove Patients From the Middle of These Payment Disputes, but the Regulations Governing This Law Remain Entangled in Debate

Once the NSA became law, the Departments of Labor, Treasury, and Health and Human Services (i.e., the tri-agencies) went into their rule-making period to draft the framework of rules and regulations that would govern the NSA when it took effect on January 1, 2022.

The first sign of trouble came when Congress published its interim final rule in October 2021, which focused on the independent dispute resolution (IDR) process and included controversial language on how the QPA should be used and calculated.

The interim rule instructed IDR entities to presume that the QPA was the appropriate payment amount for OON services. But this immediately led to backlash from the physician community, who argued that the rule would unfairly tip the scales in favor of the insurance payers. The tri-agencies had disregarded the law’s intent, which specifies that all statutory factors should be considered in every case (including the physician’s level of training, market share, acuity of the patient, teaching status, good faith efforts, or prior contracted rates).

This disproportionate weight given to the QPA in the interim rule led to the first in a series of lawsuits from the Texas Medical Association (TMA).