NASS Insider

October 25, 2022

NASS Signs Amicus Brief in No Surprises Act Lawsuit

On October 19, NASS joined the filing of an amicus brief in support of a lawsuit against the Departments of Health and Human Services, Treasury, Labor, and the Office of Personnel Management on the implementation of the No Surprises Act. Led by the Texas Medical Association, the lawsuit argues that the August final regulation unlawfully skews arbitration results in commercial insurers’ favor, in ways that violate the compromise Congress reached in the No Surprises Act. In so doing, the Texas plaintiffs state the final rule will harm health care providers and the patients they serve.

The final rule updates what information certified independent dispute resolution entities (IDREs) must consider when making a payment determination under the federal arbitration process. According to the departments, these changes were made to conform with February and July 2022 rulings by the U.S. District Court for the Eastern District of Texas. These rulings vacated the portion of the interim final regulations that directed IDREs to begin with the presumption that the offer closest to the “qualifying payment amount” (QPA), essentially the payer’s median contracted rate, was the appropriate out-of-network payment amount.

The No Surprises Act was passed by Congress as part of the appropriations bill signed into law on December 27, 2020 to address the issue of surprise medical billing. It was a bipartisan, bicameral effort that took multiple years of negotiating between legislators, the physician community, and insurers and payors. All of that work has been undercut by the administration’s interpretation of the IDR process being tied to a qualifying payment amount (QPA), determined as the median contracted rate recognized by the payer as provided in 2019 for the same or a similar item or service in the geographic region. Within the original legislative language, the IDR process was designed to consider multiple factors when resolving payment disputes between insurance plans and healthcare providers, including median in-network rates, provider training and quality of outcomes, market share of parties, patient acuity or complexity of services, prior contract history between the two parties over the previous four years, demonstrations of previous good faith efforts to negotiate in-network rates, and if a provider is a facility to consider teaching status, case mix, and scope of services.

NASS is proud to be one of the primary organizations leading this effort and will continue to work with other medical organizations and congressional leaders to ensure appropriate implementation of the No Surprises Act. The amicus brief is being led by the Physician Advocacy Institute and has been joined by 16 national medical societies and 14 state medical societies. For more information on this or other legislative issues, please contact our advocacy staff and

Philip L. Schneider, MD
President, National Association of Spine Specialists
Chair, North American Spine Society Advocacy Council