No Surprise: No Surprises Act Reveals Arbitration Concerns

The FAQ released recently yields information on the Independent Dispute Resolution.

The FAQs related to the No Surprises Act final rule was released last week. Just as quick reminder, the rule deals with the arbitration process between payers and providers on out-of-network claim reimbursement. But first, let’s look at some of the reactions to last week’s final rule.

Interestingly, there hasn’t publicly been a lot of reaction. We’re still waiting to see what the plaintiffs in the lawsuits surrounding this issue will do. One thing we do have, however, is a statement from the American Society of Anesthesiologists expressing their disappointment with the rule, stating that it – “fails to protect patient access to…providers” and still allows insurers to profit at “patient and provider expense”. They noted that they’re mulling over what their next move will be in court, so expect to see an update on that litigation soon.

The FAQs that accompanied the final rule addresses several key issues, building off previously released guidance in addition to the new rule. Topics include initial payments, disclosures and open negotiation, payment denials, how the NSA applies to no-network plans and those that use reference-based pricing, what to do with plans that don’t provide out-of-network coverage at all, and how the NSA works with behavioral health emergencies and air ambulance non-emergencies. 

The guidance also interestingly dedicates a question to clarifying that insurers who do vary contracted rates based on specialties have to calculate a separate median contracted rate for each specialty. Some providers are worried that despite the NSA directing that calculations of median in-network rates be based on payment data from similar specialties, insurers might calculate their median in-network rates for specialty services using primary care provider rates. This would artificially lower that median in-network rate, which, in turn, would lower the qualifying payment amount that is a significant factor in the arbitrators’ decisions. This guidance attempts to get ahead of this potentially happening by definitively laying out the methodology for calculating these amounts for specialties.

In addition to the FAQs, the Centers for Medicare & Medicaid Services (CMS) also released a set of three videos walking through the Independent Dispute Resolution (IDR) process. The videos include an hour-long tutorial on using the federal IDR portal to initiate reimbursement disputes.  CMS noted common mistakes seen throughout this process so far, which includes things like incorrectly batching cases, not providing accurate contact information, and failing to include the Qualifying Payment Amount provided with an initial payment. All this guidance has been released in the hopes of improving both efficiency and speed of going through this arbitration process.

This is much-needed information because, according to the recently released update on the federal IDR portal, the departments have run into a few operating issues in the short five months the portal has been open.  Firstly, there has just been a totally unexpected number of disputes initiated: over 46,000 between opening day of April 15 to the report cutoff date of Aug. 11.  Among those disputes, more than 21,000 were challenged as ineligible for the federal IDR process. Ineligibility could be found due to several factors, including jurisdictional issues, incorrect batching and bundling of claims, completed open negotiations, and more. While important, someone must decide whether an eligibility challenge has merit or not, which can slow down the process. 

CMS is hoping that with the additional guidance and a little more time, disputing parties will help them help themselves, so to speak, to get the federal IDR portal operating smoothly and as intended as we move into fall.

Although we’ve been given a wealth of information in the last few weeks on this particular aspect of the NSA, the departments aren’t done. They specifically noted in these releases that this rule was narrow in scope to strictly the IDR process. 

Although the exact timeline is unclear, we can expect to see them very busy with future rulemaking on other aspects of the NSA.