June 2, 2022

Ongoing Issues and Advocacy around the No Surprises Act IDR Process

As many of you know, there have been a lot of issues with the implementation of the No Surprises Act. Most of my previous blog posts have focused on the major policy disagreements that ACEP has had with the Departments of Health and Human Services (HHS), Labor, and Treasury (the Departments)—mainly the flawed policy regarding how an arbiter must resolve billing disputes for out-of-network services in the federal independent dispute resolution (IDR) process.

When I last provided an update in April, the Centers for Medicare & Medicaid Services (CMS—one of the main federal agencies implementing the law) had released guidance that removed references to the flawed IDR policy. While this issue has been temporarily rectified, we are now awaiting the release of a final regulation that will establish the Departments’ final IDR policy. All litigation around this issue is on hold until the release of the final reg. If the reg codifies the new guidance that was released and eliminates the flawed IDR policy once and for all, then all the lawsuits will probably be dropped. However, as ACEP has signaled with respect to our own lawsuit, if the Departments were to revert back to the flawed policy in the final reg, then our lawsuit (and most likely the others as well) would kick back into full gear. That reg is expected to be released in the “summer,” so buckle your seat belts and get ready.

So that’s where things stand now from a policy perspective. However, as we wait for this reg to be released, it is important to remember that all the requirements included in the No Surprises Act, including the IDR process, are in effect and ongoing. Therefore, most of ACEP’s advocacy for the time being has been focused on operational issues. And unfortunately, there have been quite a few of them.

Case in point: ACEP has been hearing from many of you that health plans are NOT providing you with the information required by law and/or regulation that you need to accurately bill patients and to proceed with the federal Open Negotiations and IDR processes. Specifically, when health plans provide you with an initial payment or payment denial for an out-of-network service subject to the No Surprises Act (which is required within 30 days of the health plan receiving the claim), they are also required to provide you with the qualifying payment amount (the QPA—or median in-network rate) as well as the phone number and email address for the health plan official you can contact to initiate the Open Negotiations and IDR processes. Health plans are also supposed to let you know whether the claim is subject to the No Surprises Act requirements in the first place. To do this, they must provide you with a statement indicating whether the patient’s cost-sharing amount is tied to the QPA. If the cost-sharing amount is calculated based on the QPA, this means that the claim is subject to the federal dispute resolution process established by the No Surprises Act (which includes the Open Negotiations and IDR processes). If it isn’t, then the cost-sharing was calculated based on some other methodology determined by a state law (or in the case of Maryland, an all-payer model) and the claim is not subject to the federal process.

In all, you really need this information. You need to know whether the claim is subject to federal law (i.e., the No Surprises Act) or state law. And, if it is subject to federal law, you need to have the QPA and you need to know who to contact at the health plan to initiate the federal dispute resolution process. The whole successful implementation of the No Surprises Act depends on this. If you don’t have this information, you don’t know what to bill patients for out-of-network services and you don’t know who to contact to file a dispute with a health plan. This lack of information not only hurts you, but more importantly, it puts patients right back in the middle of billing disputes, as they may receive conflicting information from clinicians and health plans.

So, the fact that you are not receiving this information is a big deal. To advocate on your and your patients’ behalf, ACEP and the Emergency Department Practice Management Association (EDPMA) wrote a letter to federal agencies last month that provided: 1) specific examples of health plan non-compliance; and 2) policy recommendations that would help address these non-compliance issues. Then, last Wednesday, May 25, ACEP and EDPMA met with CMS staff to follow-up on our letter. The goal going into the meeting was to describe to CMS what specific health plan non-compliance issues we are experiencing, provide specific recommendations, and request additional guidance on how we should proceed with the Open Negotiations and IDR processes when there is limited or missing information from health plans. We also wanted to emphasize the critical need for stronger enforcement of the regulatory requirements that health plans are failing to meet.

During the meeting, we made it clear that ACEP and EDPMA members are not getting all the required information in pretty much all instances—and that these non-compliance issues are rampant and widespread among health plans across the nation. We also highlighted the significant ramifications of this lack of information, specifically stating that we are concerned that our members may not be accurately billing patients for out-of-network services despite their best efforts.

Further, we stated that the lack of information by health plans is making it difficult or impossible to negotiate with health plans and adjudicate claim disputes. While our members want to avoid the IDR process and use it as a last resort, the lack of information makes it impossible to do so. Despite reaching out to health plans, our members have been unable to get all the information—and in many cases, our members have had to initiate the IDR process just to obtain the information from the health plans that they have failed to provide.

In order to rectify these non-compliance issues, we made the following requests:

  1. Require health plans to include all required information in one place.
  2. Require information to be displayed in a standardized format.
  3. Require the use of No Surprises Act Remittance Advice Remark Codes (RARCs). These are helpful codes that CMS created for health plans to use when transmitting information related to the No Surprises Act to clinicians and facilities. This useful information includes whether the claim is subject to the federal dispute resolution process or to state law. The codes are currently optional and not being used routinely by health plans.
  4. Issue specific guidance and frequently asked questions that describe how to proceed with the Open Negotiations and IDR processes when there is missing or limited information from the health plans.

CMS staff addressed a few of our concerns during the meeting. They started out by stating that they have heard many of these issues before and have received many complaints from clinicians and hospitals that health plans are not providing all the required information. With respect to enforcement, CMS made it clear that the main way federal agencies are enforcing these requirements is for a clinician or facility to submit a formal compliant that highlights exactly how the health plan is not complying with the law and/or regulation (you can submit these billing complaints by clicking here or by contacting the No Surprises Help Desk at 1-800-985-3059). CMS and other federal agencies are investigating every complaint they receive, and they believe that they have resolved around a quarter of them (they have received thousands!). However, CMS acknowledged that there is a significant backlog of unresolved complaints. Further, CMS stated that when they resolve a specific complaint, they request documentation from the health plan and work with the health plan to rectify the specific non-compliance issue for similar claims going forward. They also said that they were having conversations internally about how to deal with these non-compliance issues overall.

CMS then made two important points about complaints that you all should know:

  1. If a compliant remains unresolved and the timelines around the Open Negotiation and IDR processes become difficult to adhere to, disputing parties (either the clinician/facility or health plan) can file for an extension.
  2. Clinicians and facilities are allowed to “batch” complaints against one health plan. In other words, instead of having to submit a complaint for each individual claim, you are allowed to submit all the complaints you have against one health plan at once. This is important as it may help save time and speed up the time in which your complaints are processed and adjudicated by CMS.

Interestingly, CMS staff also did say that in recent conversations with health plans, some plans have provided an excuse that they have tried to provide all the information to clinicians, but that clinicians have not updated their systems to collect the information (i.e., pinning the blame on clinicians). We told CMS that in our members’ experience, this was not accurate. Even when our members ensure their systems are up-to-date, and even after additional research and investigation, the required information is still not available.

At the end of the meeting, we reiterated our requests for additional guidance and the need to require health plans to include all the required information in one place and in a standardized format. We also asked CMS to detail the enforcement protocols when a health plan does not provide required information or is unresponsive. CMS thanked ACEP and EDPMA for all the information and examples we provided but did not specifically commit to our requests during the meeting.

All in all, our meeting was productive, as we now know that CMS is acutely aware of these issues and is taking them seriously. However, since CMS did not commit to adopting our recommendations, we will need to follow up with CMS and other federal agencies on these requests going forward. In other words, our advocacy work continues!

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

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