Surprise Lawsuits on No Surprises Act


By John Wallace, MD
President of IEPC

The No Surprises Act (NSA) was signed into law Dec. 27, 2020, by the President, as part of the $1.4 trillion Consolidated Appropriations Act, after years of negotiations. The surprise after NSA was passed was legal action against NSA as well as a surprise attack in cutting physician reimbursement.

When the NSA was passed, regulations were promulgated by the Department of Health and Human Services to implement the law, and which attempted to establish a Qualified Payment Amount (QPA) in stark contrast to the one established by the statute as passed by Congress. Six Lawsuits were filed against the Tri Departments of HHS, Labor and Treasury, the first filed by the Texas Medical Association and Dr. Adam Corley in Tyler Texas on October 28, 2021. They contended that the NSA interim rule was inconsistent with the law and that statutory provisions required that the Independent Dispute Resolution (IDR) “shall consider” additional factors for QPA other than “median in network rates” regarding payment decisions for physician services. The suit further contended that the QPA Presumptive Policy should be vacated, and that the Tri Departments violated the Administrative Procedure Act (APA) in issuing an interim final rule prematurely without a Notice of Proposed Rule Making (NPRM) with a 60-day comment period before issuing the final rule.

Similar contentions and lawsuits were filed by Air Ambulance Association, AMA and AHA filed suit in DC federal court. ACEP/ACR/ASA filed in Chicago Federal Court. Georgia ACEP and the Medical Association of Georgia filed in Atlanta Federal Court. A similar case was filed in New York Federal Court.

The positive verdict came out on February 23, 2022, at Texas Federal Court in favor of the Plaintiffs which vacated the September Interim Final Rule and returned the case back to the Tri Departments for corrections. CMS on 2/28/22 withdrew guidance documents based on the September rule that were invalidated by the Texas Federal Court.

In some states, health plans have cut physician payment rates by 20-30% to re-negotiate contracted rates. They set their own arbitrary payment rates.

ER Groups need to monitor health plans compliance with NSA and how Out Of Network (OON) payments compare with pre-NSA OON payments and submit 30-day notice of negotiation for cases that qualify for Federal Independent Dispute Resolution (IDR).

As of January 2023, the Health Plans must publicize in and out of network allowable rates, which will help minimize their unilateral and arbitrary payment of what they think emergency physicians are worth.

What can emergency doctors do to fight against pay cuts from the NSA? Data.

Data is power. Emergency physician hope to document the disparity between claims payment before and after NSA. Contact your billing company and request data for the QPA project. Here is sample language: “I am writing to authorize (fill in the name of the independent RCM or internal RCM function of the hospital) to produce and report (fill in group name) data and complete the spreadsheet for the QPA Reporting Project.” Since there is no PHI included, there is no need for secure transmittal. Send the completed survey templates with the name of your practice (Excel spreadsheets) to ACEP/ EDPMA consultant, Greg Hufstetler, at

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