Surprise Billing Regulations Finalize Insurer-Doctor Dispute Process

HHS issued its final rule Friday for part of the No Surprises Act, smoothing over some language that physician groups had argued would give insurers an unfair advantage in pricing disputes, although the rule itself is largely unchanged.

Numerous legal disputes over the final rule’s interim predecessor hinged on the role of the QPA (qualifying payment amount) in the independent dispute resolution (IDR), the process by which healthcare providers and insurers settle payment for medical services with the help of an arbitrator if they can’t agree on a number themselves.

Regulators took these court cases and public commentary into account when tweaking their final IDR rules.

“It looks like the [Biden] administration made the final rule a little more provider-friendly, amending the language so instead of just the median price of a service, arbiters can also use other information to more fully encapsulate the value of the care provided,” Caitlin Donovan, a spokesperson for the National Patient Advocate Foundation and the Patient Advocate Foundation, wrote in an email to MedPage Today.

“What this final rule does is to put new language in place,” noted Jack Hoadley, PhD, research professor emeritus in the Health Policy Institute of Georgetown University’s McCourt School of Public Policy. “The final rule still maintains a very critical role for the qualifying payment amount — the QPA — because it still says that’s really what always must be considered.”

An initial version of the interim rule asked independent arbitrators to favor the QPA — the insurer’s median in-network rate for a given medical service in a particular geographic area — in their consideration of opposing offers from payers and providers. The QPA was considered the “rebuttable presumption” — that is, the price presumed to be appropriate, unless physicians could provide enough information to their arbitrator to rebut it.

However, following a court decision that ruled in favor of the Texas Medical Association, HHS revised some of the language that might skew a decision in favor of insurers. The association had argued that privileging the QPA in regulatory language broke from the original statute, and a district court judge agreed.

HHS removed the offending passages after the court decision, and in this final version they now note that although the arbitrator should first consider the QPA, they may then consider other information that is “credible” and “related” to the service in question and choose the offer of the two that “best represents the value of the qualified IDR service.”

“Credible” means that the information must be accurate and believable, Hoadley told MedPage Today. “Related” means that the other considerations should relate directly to the service — that is, if a surgeon has extra training in a certain aspect of practice that wasn’t used in the disputed surgery, the arbitrator doesn’t have to consider it.

Other factors affecting the cost of an out-of-network service that an independent arbitrator could consider include:

• The level of training or outcome quality of whoever provided the service
• The acuity or condition of the patient
• The market share of a provider or insurer in a given region
• The training or experience of the provider
• The teaching status of a hospital or facility
• Past efforts to enter into a network agreement between the provider and insurer

The rule further specifies how arbitrators should take into account these more subjective factors, and requires the arbitrator to give a written explanation that documents why these factors mattered if they choose a provider’s offer over an insurer’s. However, Hoadley noted, these more “squishy” qualitative measures may still not prevail in a dispute over the more concrete QPA number.

Patients, for their part, are still left out of these negotiations entirely — but giving more leeway to out-of-network doctors asking for high rates may still impact them down the line.

“While this may not directly affect patients — after all, it’s a reimbursement question between payer and provider — it is bound to be disappointing to people who are hoping the No Surprises Act will drive down system costs,” Donovan said.