By: Christopher Parrella, Esq., CPC, CHC, CPCO Parrella Health Law, Boston, MA. A Health Care Provider Defense and Compliance Firm

On July 30, 2025, the U.S. Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury and the Office of Personnel Management, issued FAQ Set 71. This update clarifies how health plans and insurers should calculate Qualifying Payment Amounts (QPAs) under the No Surprises Act following the Fifth Circuit’s decision to rehear Texas Medical Association v. HHS and vacate the earlier panel ruling.

HHS expects plans and issuers to use a good faith interpretation of the 2023 methodology for calculating QPAs until the Fifth Circuit issues its decision. At the same time, the agencies extended enforcement discretion for entities still using the older 2021 methodology.

Background

In August 2023, a Texas federal district court vacated portions of the QPA methodology, which led to FAQ Set 62 allowing plans to use the 2021 methodology for services provided before May 1, 2024. In May 2024, FAQ Set 67 extended that discretion to items and services provided before November 1, 2024. In October 2024, a Fifth Circuit panel partially reversed the district court. FAQ Set 69 then permitted enforcement discretion for both the 2021 and 2023 methodologies for services furnished before August 1, 2025.

On May 30, 2025, the full Fifth Circuit vacated its panel opinion and agreed to rehear the case en banc, reinstating the district court’s 2023 ruling as binding for now. FAQ Set 71 was issued in response to this latest development.

Key Takeaways from FAQ Set 71

1. Plans and issuers must calculate QPAs using a reasonable, good faith interpretation of the 2023 methodology until the Fifth Circuit issues its en banc ruling.
2. Enforcement discretion has been extended for the 2021 methodology. Plans and issuers may continue using it for items and services furnished before February 1, 2026. Providers who bill patients based on QPAs calculated with the 2021 methodology are also protected for services before that date.
3. Plans must certify that QPAs were calculated in compliance with regulations. If the 2021 methodology is used, plans must disclose that fact to providers upon request.
4. HHS is encouraging states to follow this enforcement approach. However, federal enforcement discretion is not expected to extend beyond August 1, 2026.

What This Means for Providers and Plans

Issuers and plans using the 2021 methodology have a grace period through early 2026, but should prepare to adjust quickly once the Fifth Circuit issues its ruling. Providers remain protected from enforcement actions if cost-sharing is based on QPAs calculated under the 2021 methodology for services through February 1, 2026. State enforcement may vary, so it is important to confirm how your state is approaching these issues.

If you are a provider, now is the time to confirm whether the payers you work with are applying QPA methodologies correctly and in good faith. You should also review your state’s surprise billing laws and be ready to challenge improper calculations that could affect reimbursement or expose you to patient disputes. Parrella Health Law represents providers in navigating No Surprises Act compliance, challenging payer methodologies, and preparing for shifting regulatory interpretations. For guidance on protecting your practice, contact Parrella Health Law at 857.328.0382 or Chris directly at cparrella@parrellahealthlaw.com