No surprises law update – New IDR guidelines | Epstein Becker & Green


On April 14, 2022, the Centers for Medicare & Medicaid Services (CMS) released new guidance on the Independent Dispute Resolution (IDR) process, created under the No Surprises Act (NSA) to provide a mechanism for payers and providers to resolve disputes as to appropriate payment amounts for certain out-of-network claims. In addition, the Ministries of Health and Human Services, Labor and Treasury have launched two online portals, one to host the IDR process for providers and payers and the other to host the dispute resolution process. patient-provider disputes for self-paid and uninsured patients.

These new guidelines replace the agency’s previous guidance on how the IDR process works and what the independent arbitrator should consider. The previous guidelines were withdrawn after a successful legal challenge to the Interim Final Rule implementing the provisions of the law with no surprises on the IDR process, particularly with respect to the weight to be given to the eligible payment amount (QPA). The QPA is essentially the payor’s median contractual rate for similar services. The QPA is used to calculate patient cost sharing and should be considered by the Independent Adjudicator when resolving a payment dispute between a payer and an out-of-network provider. Initially, regulators instructed arbitrators to use the QPA as a baseline and, when choosing between parties’ proposed payout offers, to choose the amount closest to the QPA, unless one of the parties submit credible information demonstrating that the appropriate payment amount was materially different from the QPA. .

The provider community disputed this interpretation, arguing that it unfairly favored payers and did not reflect the wording of the law. Groups such as the Texas Medical Association, the American Hospital Association and the American Medical Association have taken legal action. In late February, a federal judge in the Eastern District of Texas agreed with the challengers and struck down sections of the agency’s rules relating to the QPA. Several other lawsuits are pending in federal courts across the country, including one challenging regulations regarding the IDR process for out-of-network air ambulance services brought by the Association of Air Medical Services.[1]

The most notable difference between the old and new guidelines is not what was added, but what was removed, namely the discussion of the importance of “eligible payment amounts” (QPA). Interestingly, CMS did not remove or revise the directive from the guidance document to arbitrators to weigh QPA more heavily in deciding payment disputes between payers and out-of-network air ambulance service providers. The case challenging related IDR regulations for air ambulance services is still pending on a motion for summary judgment in the United States District Court for the District of Columbia.

It should also be noted that CMS has stated its intention to publish revised IDR regulations by early summer. If CMS follows the same approach used in the revision of the IDR guidelines, the new rule may be largely the same, but without the detailed provisions on the weight that the arbitrator must give to QPA over the other relevant information submitted. Stay tuned.

[1] Association of Air Medical Services v. HHS; 1:21-cv-03031-RJL.

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