NSA Up to the Minute: TMA's IFR Challenge Briefing Concludes

February 22, 2022 - NSA Member Update

Additional Detail & What's Happening Now
 
Briefing has concluded in the Texas Medical Association’s (TMA) challenge to Interim Final Rule (IFR) Part II in the U.S. District Court for the Eastern District of Texas.  The Court held a hearing on the merits of the TMA’s challenge on February 4, 2022, and indicated during the hearing that it would try to issue a decision expeditiously.  The TMA’s challenge to IFR Part II is similar to AAMS’s challenge to IFR Part II.  Like AAMS, TMA argues that that the provisions of IFR Part II that make the qualified payment amount (QPA) the presumptive factor in the IDR process is contrary to law and therefore violate the Administrative Procedure Act (APA). 
 
AAMS filed its reply brief in its federal challenge to IFR Parts I and II in the U.S. District Court for the District of Columbia on February 1, 2022. Soon thereafter, the Court consolidated the American Medical Association (AMA) and American Hospital Association’s (AHA) challenge to IFR Part II into AAMS’ case. The AMA and AHA filed their reply brief on February 8, 2022. The briefing in the consolidated AAMS case will conclude with the Government’s filing of its reply to all plaintiffs (AAMS, AMA, and AHA) on February 18, 2022.  
 
AAMS has twice asked the Court to hold hearing on the merits of our challenge as soon as possible. In doing so, AAMS has emphasized its need for a decision by April 1, 2022. After the Government filed its reply on February 8, 2022, we expect the Court to either schedule a hearing on the merits or proceed directly to issuing a decision on the merits. AAMS, AHA, and AMA are all awaiting the Judge’s decision.
 
Currently, with one exception, all provider organizations have filed amicus briefs in support of the plaintiffs. For example, the Hospital Associations filed a brief arguing that the NSA legislative history shows that Congress rejected the policy adopted by the Departments. The College of American Pathologists and Emergency Department Practice Management Association also filed supportive briefs. 
 
The organizations listed below have filed amicus briefs in favor of the Departments, arguing that the Departments’ QPA presumption improves predictability, which lowers costs and benefits consumers. Some of them contend that the IFRs will increase network participation.  

• American Benefits Council
• America’s Health Insurance Plans (AHIP)
• Blue Cross Blue Shield Association
• Health Policy Experts
• Leukemia & Lymphoma Society
• Arthritis Foundation

The Association of Critical Care Transport (ACCT) is the only organization representing healthcare providers to file an amicus brief supporting the Departments, disagreeing with the AAMS position that the Departments’ general rule for determining the specialty of a provider should apply to all providers, including air ambulance providers. Under the general rule, the usual business practice of the plan or issuer determines whether hospitals and other air ambulance providers are the same specialty for purposes of the plan’s or issuer’s QPA. AAMS explained in its reply brief that the Departments have recognized that at least some plans and issuers already treat hospitals and other air ambulance providers as different specialties, and the statutory text does not permit the Departments to carve out air ambulance from the general rule.