Somewhere this week a patient is reading an explanation of benefits for imaging their plan treated as out-of-network. The coinsurance line looks exact — machine-made, to the penny. Behind that penny sits a benchmark called the qualifying payment amount, the QPA. And inside the QPA, the full Fifth Circuit just found, were prices that never existed.
The No Surprises Act told insurers to build the QPA from their median contracted rates — and the patient's cost-sharing, in the court's own words, “is calculated as a portion of the QPA.” The July 2021 rule that implemented the statute let two thumbs rest on the scale. “Ghost rates” — fee-schedule entries for services a practice never actually performs, “in some cases, as low as $0” — could be averaged in. And the bonus and incentive payments that raise what providers really collect could be left out. Both thumbs push the median the same direction. Down.
On Tuesday, en banc — the full court, not a three-judge panel — the Fifth Circuit held both moves unlawful. Then it did the thing the coverage will flatten. It acknowledged the agencies can use enforcement discretion to let insurers keep working from the existing QPAs until new ones are calculated, so patients aren't thrown back to pre-Act balance billing. The number is unlawful. And the number is still the number.
From the opinion: “By requiring insurers to include $0 ghost rates in the QPA, the July Rule was arbitrary, capricious, and otherwise contrary to law.” And on the government's plea that the benchmark was too entrenched to strike: “The APA, however, does not embrace a too-big-to-vacate principle.”
My read, for any imaging group with out-of-network exposure — which, if you cover a hospital, is you: this opinion is a dated federal receipt for the thing your billing team has said for five years without one. The benchmark ran low by design. Radiology sits closer to this than almost any specialty; emergency and hospital-based imaging is exactly where the QPA does its work, in independent dispute resolution and on the patient's own share line. Every open IDR case and every payer conversation now happens in the shadow of a benchmark a federal appeals court has called contrary to law.
But the sharper thing to hand your referrers and your patients is the collision itself. A court struck the method and blessed the meantime. Nothing on tomorrow's EOB changes. No recalculation was ordered. The honest sentence is strange to say out loud — the number was unlawfully built, and it still sets the bill — and the practice willing to say it plainly, with the case number attached, becomes the one place a confused patient heard it straight.
Kept honest. The opinion is per curiam with partial dissents, and the case is remanded — this is not a final resolution, and no new QPA values exist yet. Nothing was ordered recalculated; the court explicitly contemplated enforcement discretion keeping existing QPAs in use, and certiorari remains possible. Providers lost the third issue — single-case agreements stay in the calculation, which mattered most to the air-ambulance co-plaintiffs. The QPA governs out-of-network items and services under the No Surprises Act, not your in-network contracts. And the read that this strengthens a group's IDR posture is mine — the opinion vacates methodology; it awards nobody a dollar.
Source, primary: Texas Medical Association; Tyler Regional Hospital, L.L.C.; Dr. Adam Corley v. U.S. Department of Health and Human Services, et al., No. 23-40605, U.S. Court of Appeals for the Fifth Circuit, en banc, filed August 11, 2026 — the 43-page opinion PDF fetched and read directly this morning, August 15, 2026. Every quoted phrase — “arbitrary, capricious, and otherwise contrary to law,” the $0 ghost-rate language, “a patient's cost-sharing amount is calculated as a portion of the QPA,” “does not embrace a too-big-to-vacate principle,” and the enforcement-discretion passage — is verbatim from that PDF. The methodology struck is the qualifying-payment-amount construction in the July 2021 interim final rule, 86 Fed. Reg. 36,872, implementing 42 U.S.C. § 300gg-111. Disposition: affirmed in part, reversed in part, remanded.
A federal appeals court just ruled that the number behind out-of-network medical bills was built with prices that never existed. Then it let the number keep working anyway. Here's the machinery, because your patients are never shown it. When imaging is out-of-network, the No Surprises Act protects the patient from balance billing — good — and pegs both what the insurer pays and what the patient owes to a benchmark called the qualifying payment amount. The statute says: build it from median contracted rates. The 2021 rule that implemented it allowed two things the statute didn't. Insurers could average in "ghost rates" — fee-schedule entries for services a practice never performs, in some cases literally $0. And they could leave out the bonus and incentive payments providers actually collect. Both push the benchmark one direction: down. A lower benchmark means lower out-of-network payment — and it's the same number the patient's coinsurance is calculated from. On Tuesday the full Fifth Circuit — en banc, all of it — held both moves "arbitrary, capricious, and otherwise contrary to law." The government argued the benchmark was too load-bearing to strike. The court's answer is one for the wall: the law "does not embrace a too-big-to-vacate principle." And then the part the headlines will flatten: nothing changes tomorrow. The court accepted that insurers can keep using the existing QPAs until new ones are calculated — deliberately, so patients aren't thrown back to the old balance-billing era while the math is rebuilt. So this is where out-of-network imaging billing stands this morning: the benchmark was unlawfully built, and the benchmark still sets the bill. If you're reading an EOB for a scan and the numbers feel like they came from somewhere you can't see — they did. That's what changed this week: a court finally looked. Bring us the bill. We'll show you what the number is made of.
Use the MRP Personal Design System (Signature). Create a 1080x1350 animated piece titled "Still the Number." Bone field (#F4F1EC), Ink type (#141414), Coral Deep (#D9401F) for the kicker, small-caps labels, hairline rules and the footer; Coral Bright (#FF6A4D) spent EXACTLY TWICE — once on the "$0" at the moment the ruling line lands in beat 3, and once on the final line of the end card. Cormorant for the "$0", the quoted ruling line and the end card; Manrope Light for labels, captions, the ghost-rate column and footer; Italiana for the SignatureMark. Tall, airy, left-aligned. Max 3 type moves. The piece is A NUMBER THAT SHOULD NOT BE THERE: a column of faint prices, one impossible entry among them, the court's words landing on it, and the fact that it all still stands. No gavels, no scales of justice, no dollar-bill imagery, no charts with axes, no photography. Typography and hairline rules only. Sequence (52 seconds): 1. (0-6s) Kicker top-left, letter-spaced uppercase Manrope in Coral Deep, types on: "FIFTH CIRCUIT · EN BANC · TEXAS MEDICAL ASSN v. HHS · FILED AUG 11". Beneath it one Manrope Light Ink line fades in: "the number behind the number on the bill." Hold on near-empty Bone. 2. (6-17s) Small-caps Coral Deep label: "THE BENCHMARK". Beneath it a left-aligned column of five faint Manrope Light warm-grey fee-schedule figures fades in one by one, unhurried — plausible clinic prices, no labels. Then, mid-column, a large Cormorant Ink "$0" arrives — bigger than everything around it, settling into the list like it belongs there. Caption below in Manrope Light: "a fee-schedule entry for a service never performed — averaged in." Hold; the wrongness is the image. 3. (17-29s) The grey column dims further; the "$0" stays. A Coral Deep hairline rule draws beneath the column, and under it one Cormorant Ink line arrives at reading speed, quoted: "“arbitrary, capricious, and otherwise contrary to law.”" As it lands, the "$0" warms to Coral Bright (moment 1 of 2). Small Manrope Light caption: "the en banc Fifth Circuit, on how the benchmark was built." Hold two seconds. 4. (29-40s) Everything fades except the hairline rule. Two Cormorant Ink lines set themselves with a breath between: "the court struck the method." / "and let the number keep working." LONG HOLD, at least three seconds, part of it unvoiced — the collision sitting. 5. (40-52s) Clear. End card in Cormorant, three lines at reading speed, third warming to Coral Bright (moment 2 of 2): "Unlawful." / "And still the number." / "Read the bill with someone who knows." Footer in Manrope Light Ink: "5TH CIR. EN BANC · NO. 23-40605 · FILED AUG 11, 2026 · QPA · JULY 2021 RULE, 86 FR 36872". SignatureMark bottom-left: Italiana "Meschelle Peterson" + code63labs. Motion language: fades, type at reading speed, a column that assembles item by item, one oversized figure settling among small ones (the asymmetry IS the argument), one hairline rule, one long held beat on the collision pair. No bounce, no scale-pop, no wipes, no icons. Restraint is the aesthetic.
FIRST SOURCE · one verified original-source finding, composed for one reader · this edition: radiology — for the group whose patients meet the benchmark on their EOB before anyone explains it