The House Ways and Means Committee is calling for "swift action" to fix the No Surprises Act final rule issued in August, which it said violates the law passed by Congress "in the same way as before."
"Although the final rule makes some limited progress by no longer designating an unlawful 'rebuttable presumption' towards the QPA [qualifying payment amount] as the interim final rule did (which a federal district court properly invalidated), we find that the new instruction to IDR [independent dispute resolution] entities largely would have the same effect," the committee said in a Nov. 18 letter to HHS and the Labor and Treasury departments.
The committee said that while the law passed by Congress explicitly requires independent dispute resolution entities to separately consider all the statutory factors, the final rule precludes them from giving weight to factors like patient acuity and the complexity of furnishing the item or service at issue unless providers meet the heightened burden of disproving double counting within the QPA.
The committee also argued that neither providers nor IDR entities can intelligently evaluate the QPA to determine whether other factors are already accounted for and,, "as a result, providers cannot prudently submit information that rebuts assertions of double-counting."
The committee also said that, while the final rule acknowledges the flaw in the interim rule that forced an IDR entity to provide a rationale in its written decision only when it selects a final rate that was materially different from the qualifying payment amount, "[they] are concerned that the final rule perpetuates this same error."
Read the full letter here.