Aug.
12,
2026
Statement
by
Texas
Medical
Association
(TMA)
President
Bradford
W.
Holland,
MD,
in
response
to
Tuesday’s
en
banc
opinion
by
the
U.S.
Court
of
Appeals
for
the
5th
Circuit
in
TMA
III.
“TMA
celebrates
the
federal
appellate
court’s
en
banc
ruling,
which
is
vital
to
implementing
a
fair
process
and
promoting
patient
access
to
care
under
the
No
Surprises
Act
(NSA)
as
intended
by
Congress.
The
ruling
reflects
TMA’s
strong
commitment
to
protecting
patients
from
surprise
medical
bills
while
requiring
agency
rules
and
associated
insurer
calculations
to
comply
with
the
law.
“The
agency
rules
TMA
challenged
in
this
lawsuit
–
which
permitted
inclusion
of
ghost
rates
and
required
exclusion
of
bonus
and
incentive
payments
when
calculating
the
qualifying
payment
amount
(QPA)
–
artificially
deflated
the
QPA
and
therefore
reimbursement
rates.
These
unlawful
rules
contributed
to
unfair
negotiating
practices
by
insurers
and
a
dramatic
increase
in
physicians
and
other
health
care
professionals
having
to
seek
arbitration
with
insurers
in
order
to
obtain
fair
payment
and
keep
their
practices
viable
enough
to
provide
patient
care.
“TMA
has
repeatedly
urged
the
federal
government
to
implement
the
NSA
in
a
manner
that
is
lawful
and
preserves
patient
access
and
physician
practice
viability.
The
appellate
court’s
decision
is
another
step
in
the
right
direction
for
both
patients
and
the
physicians
who
care
for
them.
“I
congratulate
and
thank
TMA
Vice
President
and
General
Counsel
Kelly
Walla
and
our
entire
legal
team
–
as
well
as
TMA’s
outside
counsel
Sidley
Austin
LLP
–
for
this
successful
fight
on
behalf
of
physicians
and
their
patients.”
NSA
Case
History
TMA
filed
this
lawsuit challenging
the
NSA’s
interim
final
rules,
TMA
III,
in
November
2022.
The
federal
agencies
involved
–
the
U.S.
Departments
of
Health
and
Human
Services,
Labor,
and
the
Treasury,
along
with
the
Office
of
Personnel
Management
(collectively,
the
Departments)
–
appealed
the
initial
decision
by
the
U.S.
District
Court
for
the
Eastern
District
of
Texas.
That
initial
decision
held
in
TMA’s
favor,
vacating
the
Department’s
rules
that
unlawfully
deflated
the
QPA
that
arbitrators
consider,
among
other
statutory
factors,
when
resolving
disputes
over
health
plans’
payment
for
certain
out-of-network
care
in
federal
arbitrations
under
the
NSA
by:
-
Including
“ghost
rates”
–
or
contract
rates
with
physicians
and
other
health
professionals
who
don’t
provide
the
particular
service; -
Including
rates of physicians
who
are
not
in
the
same
or
similar
specialty
as
the
physicians
involved
in
the
dispute; -
Requiring
payers
to
use
an
amount
other
than
the
total
maximum
payment
in
calculating
a
QPA
when
a
contracted
rate
includes
contingent
payments,
such
as
risk
sharing
or
incentive-based
bonuses;
and -
Permitting
self-insured
plans
to
essentially
opt
in
to
a
lower
QPA
for
payment
disputes
with
physicians
by
using
the
rates of other
self-insured
plans.
Early
in
their
briefing
on
appeal,
federal
regulators
dropped
their
appeal
of
two
of
the
four
provisions
(ultimately
only
appealing
the
district
court’s
ruling
prohibiting
the
inclusion of ghost
rates
and
requiring
the
inclusion of bonus
and
incentive
payments
in
QPA
calculations). That
left
intact
TMA’s
district
court
win
on
two of its
four
challenges
in
this
lawsuit.
A
three-judge
panel
for
the
U.S.
Court
of
Appeals
for
the
5th
Circuit
then
found
in
favor
of
the
federal
agencies
on
the
remaining
two
issues.
This
en
banc
decision
by
the
U.S.
Court
of
Appeals
for
the
5th Circuit
reverses
the
prior
decision
of
the
appellate
court
in
favor
of
TMA
on
both
the
ghost
rate
and
total
maximum
payment
issues.
TMA’s
first
NSA
rules
lawsuit –
filed
in
October
2021,
and
which
TMA
won
at
the
federal
district
court
level –
alleged
that
in
the
interim
final
rules
governing
federal
arbitrations
between
insurers
and
physicians
to
address
out-of-network
payment
disputes
under
the
NSA,
the
Departments
unlawfully
required
arbitrators
to
“rebuttably
presume”
the
offer
closest
to
the
QPA
was
the
appropriate
out-of-network
rate.
The
federal
agencies
did
not
appeal
the
district
court’s
decision.
Instead,
the
agencies
adopted
new
rules
that
were
challenged
in
TMA
II.
TMA
filed
its
second
lawsuit in
September
2022
challenging
the
NSA’s
August
2022
final
rules published
by
the
Departments,
arguing
that
the
final
rules
unfairly
advantage
health
insurers
by
requiring
arbitrators
to
give
outsized
weight
or
consideration
to
the
QPA.
The
district
court
ruled
in
TMA’s
favor
on
that
case
in
January
2023.
The
federal
agencies
appealed
the
decision
to
the
U.S.
Court
of
Appeals
for
the
5th
Circuit,
which
upheld
TMA’s
favorable
district
court
decision
in
August
2024.
The
district
court
ruled largely
in
TMA’s
favor in
August
2023
in
the
association’s
fourth NSA
lawsuit,
which
TMA
filed
in
January
2023.
The
federal
agencies
did
not
appeal
this
decision.
TMA
is
the
largest
state
medical
society
in
the
nation,
representing
more
than
60,000
physician
and
medical
student
members.
It
is
located
in
Austin
and
has
110
component
county
medical
societies
around
the
state.
TMA’s
key
objective
since
1853
is
to
improve
the
health
of
all
Texans.
-30-
TMA
Contacts: Brent
Annear (512)
370-1381;
(512)
656-7320
Swathi
Narayanan (512)
370-1382;
(408)
987-1318
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