The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and Treasury, along with the Office of Personnel Management (OPM), have issued Frequently Asked Questions (FAQs) concerning certain provisions of the No Surprises Act. The Act provides consumer protections for surprise medical bills for some out-of-network services for insured individuals, such as air ambulance services.
The Departments and OPM issued interim final rules implementing the No Surprises Act in July and October 2021, and final rules in August 2022. As part of the rule implementation process, the agencies also established a Federal Independent Dispute Resolution (IDR) process for disputes over the out-of-network rates between plans or issuers and providers when no state law provides an alternative resolution method. The agencies have also issued past guidance on various No Surprises Act implementation issues.
The U.S. District Court for the Eastern District of Texas issued a 2023 opinion in Texas Medical Association, et al. v. United States Department of Health and Human Services et al. (TMA III), which vacated certain portions of the No Surprises Act July 2021 interim rules and some guidance documents, finding them unlawful. The court remanded the rules and guidance for further consideration, including provisions outlining the methodology for calculating the qualified payment amount (QPA). The U.S. Department of Justice (DOJ) partially appealed the district court’s decision.
On appeal, a panel of the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision vacating certain provisions related to the QPA methodology. Still, it affirmed the district court’s order vacating certain deadline provisions and its decision on the required disclosure of information about the QPA. The Fifth Circuit has granted a petition for rehearing en banc, thus vacating the Fifth Circuit panel’s decision and reinstating the district court opinion, which remains in effect pending the en banc decision.
The district court decision has prompted the Departments and OPM to issue several sets of FAQs concerning TMA III. The FAQs have included guidance on QPA calculations and disclosures and have offered enforcement relief due to the changing methodologies amidst court challenges. Most recently, the agencies issued FAQs extending enforcement discretion that allows for the QPA to be calculated as per the methodology outlined in the July 2021 interim rules, including guidance in effect before the district court’s TMA III decision. These FAQs applied to items and services furnished before February 1, 2026.
The Departments and OPM are now extending enforcement discretion relief concerning the QPA calculations for items and services furnished after February 1, 2026, and before October 1, 2026. Enforcement discretion applies to QPAs when calculating patient cost sharing and when providing various required disclosures. HHS is also extending its exercise of enforcement discretion under the No Surprises Act provisions for air ambulance services concerning cost-sharing amounts based on QPAs calculated under the 2021 methodology during the same time. Likewise, HHS is encouraging states to adopt a similar approach to enforcement, as they may be the primary enforcers of relevant No Surprises Act provisions. The agencies anticipate issuing further QPA calculation guidance after the Fifth Circuit issues its en banc decision.
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