Transparency & the TMA Suit: Major Updates

It has been a few weeks since my last legislative update, and while quite a bit has happened during the interim, I’m going to brief everyone today on two major updates to topics you’ve no doubt read about quite a bit over the years: transparency and the No Surprises Act (NSA) independent dispute resolution (IDR) process.

First, the Centers for Medicare & Medicaid Services (CMS) recently issued a new request for information (RFI), FAQs, and guidance related to transparency requirements for health plans and healthcare price transparency in general. This was done in response to President Trump’s February Executive Order (EO) titled “Making America Healthy Again by Empowering Patients with Clear, Accurate, and Actionable Healthcare Pricing Information (try saying that three times fast!) As we reported at the time, this February EO was an “extension,” if you will, to President Trump’s first-term transparency-focused EO that initially required hospitals to publicly post standard charge information. The most recent EO referenced the previous requirements and added that agencies should take all necessary action to implement “the promise of radical transparency.”

Turning back to the CMS new announcements, the agency published an RFI to inform future rulemaking and guidance on how best to improve prescription drug price transparency, as well as implement the prescription drug machine-readable file (MRF) requirements for health plans. Just as a reminder, CMS has thus far deferred enforcement of those requirements, so it looks like that might be coming in the future.

The agency also released FAQs related to its intended release of revised technical requirements for health plans’ in-network and out-of-network MRFs. This new version will require the exclusion of duplicative data, reduce unnecessary data fields, and include updates to better contextualize the data.

The FAQs also mention that CMS is considering rulemaking to improve the health plans’ MRF requirements as a whole.

And finally, CMS released updated guidance on hospital price transparency and hospitals’ requirements to display standard charges. The guidance clarified that hospitals are required to encode a standard charge dollar amount in the hospital MRFs, not estimates, and also provides updated instructions on calculating the estimated allowed amounts for services.

These publications were reportedly done in service of the February EO, as well as President Trump’s commitment to using healthcare data to “curb rising health care costs, promote competition, and empower patients.”

But this wasn’t the only big news out of Washington this week. Well, technically, this story is out of New Orleans…but regardless, it was an unexpected turn of events in the ongoing journey of the NSA lawsuit known as TMA (Texas Medical Association) III. The 5^th Circuit Court of Appeals granted a rare rehearing of the TMA III case before the entire court.

TMA III specifically deals with how health plans calculate the qualifying payment amount (QPA). Plaintiffs argued that final rules from the federal government on the NSA’s dispute resolution process allow plans to artificially depress the QPA, which allegedly would tilt the dispute resolution process in favor of the payer. Frequent readers may recall that a three-judge panel of 5^th Circuit judges ruled mostly in favor of the federal government in the case, which was an appeal from a Texas district court, last fall. 

It was a rare win for the federal government in the series of TMA cases. TMA asked that the appeal be completely reheard before the full court, instead of a panel, which the court has now agreed to do. Initial scheduling indicates that the case will be eligible to go before the court again in the fall, and it’s anyone’s guess whether the full court will come to a similar conclusion of their colleagues’ initial decision, or grant TMA a new victory.

So, it’s a little bit like two steps forward, one step back for the federal government right now. While the administration has taken these significant steps forward in advancing transparency, the courts have given it a pause – at least for now.

What’s certain is that it’s sure to be an extremely busy fall.

Programming Note: Listen live to Monitor Monday with Chuck Buck, 10 Eastern, to hear the “Legislative Update” sponsored by Zelis.