March 2023

In another important advocacy win, CMS issued revised guidance for the independent dispute resolution (IDR) process that took into account the Texas Medical Association court order. The new guidance removed the flawed “double counting” provision and states that independent arbiters must consider all evidence presented to them by the disputing parties (without weighting the qualifying payment amount more heavily than any other factor or assuming that other factors are already incorporated into the qualifying payment amount).

The guidance finally seems to closely reflect what the No Surprises Act statute actually says. We celebrated this as an important advancement in ACEP’s advocacy push to make the arbitration process more fair and balanced.

Also in March, ACEP’s federal advocacy team worked with members of Congress to ensure that HHS Secretary Xavier Becerra would be asked to answer key questions about the implementation of the IDR process during his testimony before several congressional committees regarding President Biden’s fiscal year (FY) 2024 budget.

April 2023

On April 22, the Department of Health and Human Services filed to appeal the ruling to the U.S. Court of Appeals for the Fifth Circuit. If they win their appeal, it could change the guidance that was released in March. For now, that guidance still stands, even though the administration is not enforcing it. Hearings were held for TMA III, which questions the methodology used to calculate the QPA, and TMA IV that argues against the significant increase in the administration fee from $50 to $350 in 2023. ACEP submitted amicus briefs for both earlier this year.

What’s Next?

Our fight continues. We are monitoring the legal situation closely and working with legislators to ensure Congress holds the Administration accountable and implements the carefully crafted statute to the letter of the law.

Leslie Moore is ACEP General Council.