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December 7, 2023 – If you have been following the implementation of the No Surprises Act independent dispute resolution (IDR) process, you have likely seen a bunch of new rules, guidance documents and deadline extensions come out recently and wondered: “What do they all mean and how do they all fit together?”
The implementation of the No Surprises Act will continue on its bumpy and twisty journey over the next year, as temporary guidance and extensions will eventually transition into permanent policies once final regulations become effective.
So, let’s break down what these temporary policies are, how long they last and what flexibilities and extensions are available in the short term. I’ll also preview what the permanent policies may look like and when we may expect to see some continuity in the IDR process.
In the last few weeks, the US Departments of Health and Human Services, Labor and the Treasury (the Departments) have released the following temporary policies and extensions:
Temporary Extensions for Single and Bundled Disputes
The IDR portal is currently open for single and bundled disputes (“bundled” in this context means multiple services bundled together into a single payment from a health plan). The portal remains closed for batched (and air ambulance) disputes.
The entire IDR portal was initially closed on August 3, 2023, after the Texas Medical Association (TMA) IV court decision. It reopened for single and bundled disputes on October 6, 2023, and providers had until November 3, 2023, to initiate any disputes that have become eligible for the IDR process since the portal closed on August 3. That deadline has now come and gone.
Providers are eager for the portal to open for batched disputes given the efficiencies of collectively submitting similar claims. In a recent webinar, the Centers for Medicare & Medicaid Services (CMS) stated that the portal will likely be reopen for batched (and air ambulance) disputes by the end of the year, with a goal of mid-December (i.e., with the next couple of weeks).
In the meantime, as certified IDR entities (arbiters) tackle the backlog of single and bundled disputes (which the Departments admit has been overwhelming), the Departments have extended certain IDR timelines through January 16, 2024. These include the following:
In light of these extensions, one might wonder whether certified IDR entities will be able to work through the backlog of disputes, and whether they will be able to make payment determinations for single and bundled disputes in a reasonable time period.
These are good questions (if I do say so myself)! Certified IDR entities are working against the clock as the Departments move towards reopening the IDR portal for batched and air ambulance disputes. If the arbiters can’t finish adjudicating these disputes, we are in for longer delays and an even bigger backlog once providers start submitting batched disputes. With respect to the second question, it is unclear whether certified IDR entities will be able to, or are even expected to, make payment determinations within 30 business days of being selected, as they are currently required to do. Certified IDR entities have struggled to meet this requirement, and with these timeline extensions, the 30-day timeframe will be even more difficult to meet. For example, if a certified IDR entity gives disputing parties an additional 10 business days (beyond the 10 business days they currently have) to submit an offer, it would only have 10 business days (instead of 20 business days) to render a decision within the 30-business-day requirement. That would be extremely challenging!
New Rules and Extensions for Batched Disputes
Although the IDR portal remains closed for batched (and air ambulance) disputes, the Departments recently released new rules and timeline extensions that will apply to these disputes once the portal is reopened. The Departments stated that they released this information now to give stakeholders time to process it all in the next few weeks. And based on all the details and nuances included in the guidance (which I will try to break down), I’m glad they did!
New Rules for Certified IDR Entities to Handle Batched Disputes
The TMA III and TMA IV court cases invalidated certain regulations regarding air ambulance and batched disputes—hence the IDR portal remains closed for these types of disputes. The Departments released the IDR operations proposed reg to establish long-term batching policies, but until these policies are finalized and effective, the Departments will take a laissez-faire approach.
In frequently asked questions (FAQs) released on November 28, 2023, the Departments stated that until they finalize the IDR operations reg, certified IDR entities have full discretion to determine whether services can be batched in accordance with the statute and the remaining regulations.
What does this mean, exactly? Well, the FAQs note that the statutory text and certain regulatory provisions remain in place after the TMA III and IV decisions. The statute states that services may be batched together as part of a single determination only if they are “related to the treatment of a similar condition.” The following three regulatory requirements for batched disputes also remain intact:
Certified IDR entities are on their own to further interpret the statute and the remaining regulatory provisions to determine whether specific services are eligible to be combined into a batched dispute. This amount of discretion for certified IDR entities might make things a bit challenging for providers, as determining what each certified IDR entity will allow may be a trial-and-error process for a while. Certified IDR entities will likely at least allow providers to batch as they previously did, by individual Current Procedural Terminology (CPT®), Healthcare Common Procedure Coding System (HCPCS) or diagnosis-related group (DRG) codes. For now, it’s unclear whether certified IDR entities will also allow batching based on the proposed rules included in the IDR operations proposed reg or another method. Thus, all in all, it remains to be seen what exactly certified IDR entities will do once the IDR portal reopens for batched disputes.
Deadlines and Timeline Extensions for Batched Disputes
Once the IDR portal reopens for batched disputes, there will also be much to sort out on the operations side. The schematic below lays out the flexibilities and temporary extensions that the Departments will provide (as found in a second set of FAQs released on November 28, 2023):
Let me highlight two important points from the process and deadlines above:
IDR Fees
There are two IDR fees: the administrative fee that the Departments charge for running the IDR process, and the certified IDR entities’ fee for processing and adjudicating disputes. Both these fees are in flux right now.
The current administrative fee is $50 and may increase to $150 if CMS finalizes the proposed increase in the recent IDR fee regulation proposed reg. That final reg could be released any day.
With respect to the certified IDR entity fee, the current amounts are between $200 and $700 for single disputes and between $268 and $938 for batched disputes. For batched disputes, certified IDR entities can currently charge additional fees based on the size of the batch:
The certified IDR fee structure could change depending on what policies CMS finalizes in the IDR fee proposed rule. Under the proposed fee structure, certified IDR entities would be permitted to charge a fixed fee for single disputes between $200 and $840, and for batched disputes between $268 and $1,173. With respect to batched disputes, certified IDR entities would also be permitted to charge a fixed tiered fee within the range of $75 to $250 for every additional 25 line items within a batched dispute, beginning with the 26th line item.
Looking Forward: When Do the “Permanent” Policies Become Permanent?
Batching
The temporary laissez-faire approach to batching (where certified IDR entities have full discretion to make batching eligibility determinations) will be in place for a long time!
As stated above, the permanent batching policies are currently being formulated through rulemaking—in the IDR operations proposed reg. That reg would establish requirements for how services are batched and would replace the temporary guidance the Departments just released. However, the Departments’ proposed effective date for these permanent batching policies is a long way off: 90 days after the final reg is published, or August 15, 2024. That means the current guidance will be in place for the better part of a year (nine or 10 months).
IDR Fees
The new administrative fee and certified IDR entity fees will likely become effective on January 1, 2024. Therefore, the portal may not be open for batched disputes for very long before the new fee amounts and certified IDR fee structure are in place.
A potentially confusing aspect of the fees is that other changes are coming in 2025 based on the policies in the IDR operations proposed reg. That reg proposes a new process and timeline for paying the administrative fee and would cap the number of services that can be batched at 25 (which would impact the certified IDR entity fee amount).
Well, I have tried to lay out all the new rules, flexibilities and timelines. If this still feels as clear as mud to you, feel free to reach out. There are also more changes coming down the pike, so stay tuned for updates!
Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.
For more information, please contact Jeffrey Davis. To access the full archive of Regs & Eggs, visit the American College of Emergency Physicians.
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