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April 14, 2022

No Surprises Act Updates Related to the “Disputed” Independent Dispute Resolution Process

To state the obvious, the first few months since the No Surprises Act has gone into effect have been a bit bumpy (and let’s face it, the period before that wasn’t so smooth either). As you all know from previous Regs and Eggs blogs, there have been multiple lawsuits over the Departments of Health and Human Services (HHS), Labor, and Treasury’s (the Departments) policy regarding how an arbiter must resolve billing disputes for out-of-network services in the federal independent dispute resolution (IDR) process. Specifically, the policy in question stated that the arbiter must consider the qualifying payment amount (QPA) to be the presumptive payment amount for out-of-network services and should weigh that factor more heavily than other factors the arbiter was also supposed to consider pursuant to the No Surprises Act. This policy is flawed for a plethora of reasons (please read this blog post to read them all!), and, much to ACEP’s delight, a federal judge in Texas invalidated the policy nationwide through a court order issued in February.

When I last updated you all back in early March, the Departments had issued a public statement about how they planned to conform with the Texas court’s order. The Departments removed all references to the IDR process in regulations and had taken down previously published IDR guidance from their webpage. They stated that they intended to “promptly” repost the IDR guidance documents once these documents had been updated to conform with the Texas court’s order. They would also wait until the revised IDR guidance documents were posted to launch the “IDR Portal”— the main system that will be used to facilitate disputed claims through the federal IDR process.

Well, there have been some important updates since then that I want to share.

  • IDR Portal Launch: First, the Centers for Medicare & Medicaid Services, or CMS (one of the main agencies implementing the No Surprises Act), announced that the IDR portal is expected to launch this week (at the time this blog was written, it had not been launched yet).

    Once the IDR portal is launched, disputing parties (providers and health plans) will have 15 business days to initiate the IDR process for all eligible claims that have already completed the 30-day Open Negotiation process. The Open Negotiation Process is the mandatory step that precedes the IDR process when resolving payment disputes under the rules established by the No Surprises Act. While the Departments had initially required disputing parties to initiate the IDR process four business days after the Open Negotiations Process ended, they have temporarily extended this timeline to 15 business days. ACEP and the Emergency Department Practice Management Association (EDPMA) sent a letter to federal agencies on March 22 asking for even more flexibility to ensure that all eligible claims can go through the IDR process after the Portal is opened.
  • Revised IDR Guidance: CMS also just released the IDR guidance that removes references to the flawed QPA presumptive policy (guidance for arbiters can be found here and guidance for disputing parties can be found here).

    The revised guidance requires arbitrators to review the QPA and all other credible information provided by the disputing parties that is allowed under the No Surprises Act when deciding which payment offer for the out-of-network service to select (the clinician or facility’s offer or the health plan’s offer). Unlike the previous guidance, it will NOT require arbiters to weigh the QPA more heavily than other factors.

While I am still reviewing the revised guidance, it does appear to mostly mirror the language in the No Surprises Act that requires arbiters to consider the QPA AND additional information submitted by the disputed parties. This additional information includes:

  • The level of training, experience, and quality and outcome measurement;
  • Market share held by the provider or facility or the plan or issuer;
  • Patient acuity or the complexity of the service;
  • Teaching status, case mix, and scope of services of the nonparticipating facility; and
  • Previous contractual relationships (demonstrations of good faith efforts (or lack thereof) made by the providers or the health plan to enter into network agreements and contracted rates between the provider and the health plan.)

There are also certain factors an arbiter cannot consider, including usual and customary charges, the amount that would have been billed by a provider or facility if the services were not subject to a prohibition on balance billing, and payment or reimbursement rates payable by a public payor, including Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), and Tricare.

The only major alteration to the statutory language that I have seen thus far is the use of the word “credible.” Credible, as defined in the guidance, means that the arbiter, upon critical analysis, believes that the information is “worthy of belief and is trustworthy.” While it is hard to argue against the requirement for the arbiter to apply this standard when assessing information received from disputing parties, it is still important to note that such a standard is not included in the actual law.

Also noteworthy is that IDR guidance states that it is not the job of the arbiter to assess whether or not the QPA is calculated correctly (although the arbiter can flag a potential miscalculation for the Departments to investigate). Rather, if providers think the QPA is miscalculated, they can notify the Departments at FederalIDRQuestions@cms.hhs.gov. Providers can also submit billing complaints here. Thus, overall, while arbiters don’t have to assess the validity of the QPA, they do have to evaluate the credibility of all other information that they will use to come to a decision about what the appropriate payment amount is for the disputed service. Just to reiterate this point one more time, the QPA is calculated in a black box by health plans (and is not scrutinized by the arbiter) and all the other information in most cases will be provided by clinicians and facilities (and is heavily scrutinized by the arbiter).

There was a CMS webinar last Friday to discuss the IDR process, and there is another one scheduled for today (April 14) at 12 pm EST. You can click here to tune into today’s webinar.

So, all in all, the road ahead may be as bumpy (or even more bumpy) than what we have experienced thus far. After the revised IDR guidance is posted and the IDR portal is launched, there will likely be a scramble by clinicians (including some of you) and facilities to initiate the IDR process in the 15-day period that is allotted for the backlog of claims that have already completed the Open Negotiations process. Then, once the backlog is cleared, clinicians and facilities will have to start working on submitting newly eligible claims through the portal.

ACEP will be here to help as you start to go through the process and can work with CMS and other federal agencies to help address any issues with the IDR process you may experience. Please send me any feedback about your experience using the IDR Portal.

We along with EDPMA are also simultaneously working on a letter notifying CMS about other billing issues that have been identified, including health plans not providing all the required information that you need to initiate the Open Negotiations and IDR processes. If you don’t know if the federal dispute resolution process applies to a claim, what the QPA is, or who at health plan to contact to trigger the Open Negotiations process, it makes it hard to dispute the claim! But unfortunately, that’s what is happening in many cases. More to come on that effort!

Before concluding, I wanted to note that CMS also released some frequently asked questions (FAQs) on their main No Surprises Act webpage last week that provide information for clinicians and facilities regarding No Surprises Act rules and requirements. CMS also released a chart that provides a high-level breakout by state of whether, in general, out-of-network services are subject to the Federal IDR process or a state law. Further, the American Medical Association released a toolkit that highlights key aspects of the IDR process. Finally, as a reminder, ACEP has a webpage that lays out at a high-level what exactly emergency physicians need to know about the law.

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs!

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