As a byproduct of ongoing advocacy by the Texas Medical Association, physicians seeking to resolve out-of-network billing disputes under the flawed No Surprises Act (NSA) may receive certain extensions through mid-January.
The extensions are just one of several recent developments related to the federal law, whose implementation remains fluid and is being monitored closely by TMA.
The NSA, which took effect in 2022, established a federal independent dispute resolution (IDR) process through which clinicians can dispute health plans’ initial payment for certain out-of-network care. A certified IDR entity arbitrates these disputes.
According to a pair of notices issued in late November, The U.S. departments of Health and Human Services, Labor, and the Treasury recently announced they will grant certain extensions related to:
- Selecting a certified IDR entity;
- A certified IDR entity’s request for additional information to determine a dispute’s eligibility; and
- Submitting offers to a certified IDR entity from which to choose as the final payment.
Information about the IDR process can be found on the Centers for Medicare & Medicaid Services’ dispute resolution webpage.
TMA has sued federal regulators four times over their implementation of the law, saying it conflicts with the law and skews the IDR process in payers’ favor. Following TMA’s victory in two of these lawsuits, the federal government suspended the IDR process; its partial reopening, on Oct. 6, prompted an influx of certain single disputes.
As a result, the departments extended several timelines in the IDR process through Nov. 3. Since then, disputing parties and certified IDR entities have reported difficulty meeting the normal timelines, prompting the departments to reup the extensions through Jan. 16, 2024.
Under this second extension, disputing parties automatically will have 10 business days from the date of IDR initiation – up from the normal three business days – to agree on a certified IDR entity.
Disputing parties also may request from a certified IDR entity more time – beyond the current five business days – to provide additional information. The departments have instructed certified IDR entities to grant such requests.
Lastly, clinicians and health plans may request an additional 10 business days after the original deadline to submit an offer. Certified IDR entities may grant the extension so long as they have established an internal process for the consistent handling of such requests, according to the departments.
The departments recently published two FAQs addressing how disputing parties can batch claims and indicated they will soon reopen the portal for submission of new batched claims. Parties for whom the IDR initiation deadline fell between Aug. 3, 2023, and the date that the federal IDR portal reopens for batched disputes will have until the 20th business day after the reopening to initiate a new batched dispute.
TMA continues to fight for the fair implementation of the No Surprises Act. Most recently, the federal government appealed a district court ruling in TMA’s third lawsuit, which centers around whether rules that artificially deflate the qualifying payment amount (QPA) by, among other things, using so-called ghost rates, are in violation of the law. The QPA is an insurer-calculated amount that certified IDR entities are required to consider, among other factors, when resolving disputes. Ghost rates are contract rates with physicians and others who don’t actually provide a particular health service.
District Judge Jeremy Kernodle sided with TMA, striking down a large portion of the rules at issue. In his Aug. 24 ruling, he agreed “the challenged portions of the regulations conflict with the unambiguous terms of the [No Surprises] Act in several key respects” and “the seriousness of the deficiencies weighs heavily in favor of” nullifying them.
For one, the law “specifies that the QPA should include only certain contracted rates – specifically, rates for items or services ‘provided by a provider’ in the same specialty in the relevant geographic region,” he wrote. Federal regulators “cannot justify including rates for items or services that are not provided and never will be provided.”
The federal government’s deadline for filing its opening brief with the appellate court in this lawsuit is Jan. 11, 2024.
TMA also continues to comment on various proposed rules regarding the NSA’s implementation. On Oct. 26, TMA submitted comments on proposals related to the federal IDR process administrative fee and on the certified IDR entity fee range. The association also will submit comments in January in response to another proposed rule regarding federal IDR operations.
For the latest on TMA’s lawsuits and the No Surprises Act, check out the December issue of Texas Medicine magazine and visit TMA’s surprise-billing resource page.
Emma Freer
Associate Editor
(512) 370-1383