ACEP Court Room Advocacy: No Surprises Act Update

Update (2/13/23): As a result of the TMA II decision, the Departments have instructed independent arbiters to not issue any new payment determinations until the Departments have a chance to revise their guidance in accordance with the Court Order.  It is unclear how long IDR claims will be on hold, but ACEP will continue to keep you updated.

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We have exciting news regarding our advocacy around the No Surprises Act—this time with respect to our legal efforts! To bring you that news, and to discuss all the work that ACEP’s legal team does on behalf of you all, our members, I’m pleased to turn the blog over to Leslie Moore, ACEP’s General Counsel.

Thanks Jeffrey! As Jeffrey has outlined in previous blogs, over the past 18 months, ACEP has been fighting to ensure that the federal government’s implementation of the No Surprises Act has been in accordance with Congressional intent. Specifically, from a legal perspective, we have pushed back against the insistence of the Departments of Health and Human Services, Labor, and Treasury (the Departments) to force arbiters during the federal independent dispute resolution (IDR) process to illegally emphasize the qualifying payment amount (the QPA, or the median contracted amount) over other factors listed in the statute (patient acuity and complexity; training and experience of the provider; market share of provider/health plan; teaching status and case mix of facility; and previous experience attempting to enter into contractual agreements).

As you may recall, ACEP, along with the American Society of Anesthesiologists and the American College of Radiology, filed a lawsuit against the government in Illinois in December 2021, arguing that the second Interim Final Regulation implementing the No Surprises Act was fatally flawed and should be vacated. The Interim Final Reg set the QPA as the presumptive payment amount for out-of-network services during the IDR process. The Texas Medical Association and other plaintiffs filed a similar suit in the Eastern District of Texas, and in early 2022, the court ruled in favor of those plaintiffs, vacating the Interim Final Reg nationwide. ACEP then withdrew its case in order to monitor next steps. When the Departments published the Final Reg in August 2022, they retracted the rebuttable presumption in favor of the QPA but replaced the presumption with provisions that still tilted the arbitration process in its favor. The TMA again filed suit (TMA lawsuit # 2) and ACEP made the decision to support the TMA case by filing an amicus brief supporting its claims.

So, now that you have that refresher… here is the great news! Earlier this week, the same federal judge in Texas that ruled in the first TMA lawsuit, Judge Jeremy Kernodle, ruled in favor of the TMA… again! Our press release is available here. The Court’s ruling vacated the sections of the August 2022 Final Reg that require the independent arbiters to consider the QPA first in the IDR process and only to consider other factors in so much as they believe those factors are not already represented in the QPA. Again, the ruling applies to the entire federal IDR process nationwide.

In its opinion, the Court mentioned ACEP’s amicus brief along with briefs filed by other medical societies. Among other important points regarding the illegality of the Reg’s application, ACEP’s brief emphasized that our members will suffer financial harm because the Reg creates an arbitration process that systematically reduces payments to out-of-network physicians. Judge Kernodle’s opinion stated that “the Final Rule nevertheless continues to place a thumb on the scale for the QPA by requiring arbitrators to begin with the QPA and then imposing restrictions on the non-QPA factors that appear nowhere in the statute.”

Judge Kernodle then rejected the Government’s request that the decision be limited to only the Plaintiffs in the case, holding that vacatur is not unduly disruptive and that the decision must be enforced globally. Arbitrators will continue to decide disputes using all statutory factors as clearly set forth in the Act. He stated, “And here, vacatur would preserve the status quo because arbitrators have been – and are presently – deciding payment disputes pursuant to the statute since the Court vacated the interim final rule nearly a year ago.”

So, what’s next? Since the flawed policy is now vacated, the Departments will likely issue revised guidance to independent arbiters and may publish a revised Reg based on the decision of the Court. However, it’s still unclear if the Departments intend to appeal the Judgment (the Departments have 60 days to appeal, which would be on or before April 7, 2023). Another outstanding question is how claims that are currently in the IDR process will be impacted. It will take a little while for the Departments to release revised guidance to independent arbiters, and in the meantime, we don’t want the arbiters to be adhering to the flawed IDR instructions that the Court has struck down. Jeffrey already asked the Departments what they plan to do, and they replied as of Tuesday that they were still reviewing the Court’s decision. Stay tuned from Jeffrey for updates!

Why would ACEP file an amicus brief? 

With the great news covered, let me take a step back and talk about the recent work of ACEP’s legal department. We’ll start with a quick legal process lesson. Some of you may be unfamiliar with the practice of filing amicus briefs as a means of legal advocacy. The term “amicus curiae” or “friend-of-the-court” briefs are filed by groups with a strong interest in the subject matter of a lawsuit but which are not a party to the suit. They are generally aimed at protecting the interests of groups who may not be directly involved in a case, but whose interests are potentially affected by the litigation. They can serve multiple purposes, such as addressing policy issues, supplementing a party’s brief, providing historical perspective, or advocating for a specific position held by a party.

Amicus briefs are typically filed in appeals courts but recently, courts are accepting more briefs at the trial court level, especially in instances where public policy is being addressed. Certain organizations find filing of amicus briefs to be particularly effective vehicles to assert positions on important policy issues which may affect their members. They are also often a cost-effective way to influence judicial decisions when that group may not have the financial resources to engage as a party in litigation.

Amicus brief filings have increased over the past several years, and for the aforementioned reasons can be valuable in cases involving emerging or controversial law because they can provide social, economic or political data required for an informed judicial decision. Historically, ACEP has participated in one to two amicus briefs or other lawsuits in the course of a year; however, over the past 12 months, ACEP’s litigation efforts increased by over 400%. ACEP filed (or is currently finalizing) nine amicus briefs (sometimes individually and other times with sister medical societies) throughout the nation. All to make sure your profession and livelihood as emergency physicians are protected.

A list of some of our most recent litigation efforts are below:

• AAEMPG v Envision United States District Court Northern District of California San Francisco Case No 3:22-cv-00421 | Complaint (doc 1) filed 12/20/2021 First Amended Complaint (doc 18) filed 2/18/2022 Amicus Brief (Doc 33-1) filed 3/25/2022
• This case focuses on the corporate practice of medicine. ACEP’s amicus brief is available here.

• ASA-ACEP-ACR v HHS US District Court for the Northern District of Illinois Eastern Division Case 1:21-cv-06823 | Complaint (doc 1) filed 12/22/2021 Notice of Dismissal (doc 28) filed 10/20/2022 
• This lawsuit challenged the Second Interim final rule implementing the No Surprises Act. The lawsuit is available here.

• Marsillo v Dunnick In the Supreme Court of Texas Case No 22-0835 On Petition for Review from the Third Court of Appeals at Austin, Texas Court of Appeals No. 03-21-00296-CV | Kristy Marsillo, D.O.’s Petition for Review filed 11/19/2022
• This case relates to Dr. Marsillo’s provision of emergency medical care to Raynee Dunnick and thus any health care liability claim required proof that Dr. Marsillo acted with willful and wanton negligence, or gross negligence, in providing that care.

• Pacira Biosciences v ASA United States District Court for the District of New Jersey Civil Action No. 2:21 Civ 9264 US Court of Appeals for the Third Circuit Case 22-1411 | Complaint (doc 1) filed 4/14/2021 Opinion (doc 92) filed 2/4/2022 Amicus Brief (doc 50) Filed 9/30/2022
• This lawsuit related to allegedly false and misleading statements published in a leading medical journal about liposomal bupivacaine, a pain medication that Pacira manufactures under the name EXPAREL.

• USA v State of Idaho US District Court for the District of Idaho Southern Division Case No 1:22-cv-00329 | Complaint (doc 1) filed 08/02/2022 Amicus Brief (doc 50) filed 08/15/2022 Memorandum Decision and Order (doc 95) filed 08-24-2022 
• This case underscores the state of Iowa’s abortion-related law that clearly conflicts with EMTALA. As the brief notes, “the Idaho law is not just a bad law, it’s bad medicine.” The amicus brief is available here.

• State of Texas v Becerra In the United States District Court for the Northern District of Texas Lubbock Division Case No 5:22-cv-00185-H | Complaint (doc 1) filed 7/14/2022 Amicus Brief (doc 47-1) filed 08/16/2022 Memorandum Opinion and Order (doc 73) filed 08/23/2022
• ACEP’s amicus brief, available here, explains how the state of Texas is misunderstanding physicians’ EMTALA obligations and that laws prohibiting emergency physicians from providing appropriate care could put pregnant patients at risk..

• TMA v HHS US District Court for the Eastern District of Texas Tyler Division Case 6:21-cv-00425 | Complaint (doc1) filed 10/28/2021 Amicus Brief Memorandum Opinion and Order (doc 13) filed 2/23/2022
• ACEP’s amicus brief supports the Texas Medical Association’s lawsuit challenging the Second Interim Final Rule implementing the No Surprises Act.

• TMA v HHS US District Court for the Eastern District of Texas Tyler Division Case 6:22-cv-00372 | Complaint (doc 1) filed 9/22/2022 Amicus Brief (doc 53) filed 10/19/2022 
• ACEP’s amicus brief supports the Texas Medical Association’s lawsuit challenging the August 2022 No Surprises Act final rule. The amicus brief is available here.

•  TMA III | brief drafted | TMA v HHS US District Court for the Eastern District of Texas Tyler Division Case 6:22-cv-00450 | Complaint (doc 1) filed 11/30/2022 Amicus Brief filed 1/31/2023
• ACEP’s amicus brief supports the Texas Medical Association’s lawsuit challenging the government’s methodology for calculating the QPA, asserting that the methodology leads to artificially low median contracted rates.

I know that’s a lot of legal actions—so if you have a question about a particular one, please email me at lmoore@acep.org. It is also important to note that ACEP is currently reviewing, and will likely file briefs in, three additional lawsuits. I anticipate that this trend will continue, and while we don’t always receive the desired rulings, we will not stop fighting for our members. We continue to look for effective ways to share information regarding these battles through member communication channels like this one (thank you, Jeffrey, for the opportunity to be a guest blogger!). Again, if you have any questions regarding ACEP’s litigation efforts, please reach out to me.

Until next week, this is Leslie (and Jeffrey) saying, enjoy reading amicus briefs (and regs) with your eggs!