Agencies Revise Process Guides and Open Portal for Surprise Billing Independent Dispute Resolution

The DOL, IRS, and HHS have jointly issued revised process guides for independent dispute resolution (IDR) under the No Surprises Act, enacted as part of the Consolidated Appropriations Act, 2021 (CAA) (see our Checkpoint article). As background, the CAA expanded patient protections to shield individuals from surprise bills for certain out-of-network emergency and non-emergency services, and the IRS, DOL, and HHS jointly issued interim final regulations in two parts to implement the law. Part I addresses participant cost-sharing for services subject to the CAA, in most situations using the qualifying payment amount (QPA), which is based on the plan’s median in-network rate (see our Checkpoint article). Part II explains the role of certified IDR entities (IDREs), including fees, timing, and factors IDREs may consider in selecting a party’s payment amount (see our Checkpoint article). In response to a challenge by providers, a federal trial court invalidated a portion of the Part II regulations that prioritized the QPA over other factors in determining the out-of-network rate. The agencies then issued a memorandum indicating that they would update their guidance documents to conform with the court’s order (see our Checkpoint article).

Previously issued IDR process guides (see our Checkpoint article) have now been revised with changes to tables and explanations that address the court’s determination that the CAA requires IDREs to consider—in addition to the QPA—credible information relevant to five other circumstances (such as a provider’s training, experience, and outcomes; the provider’s market share; and the patient’s “acuity” or the complexity of providing services to the patient) and other relevant information submitted by either party. Notably, the revised guidance has deleted references to a presumption in favor of the QPA as the appropriate out-of-network rate. However, the guidance distinguishes between air ambulance and other services. For non-air ambulance services, the guidance provides that the IDRE must consider the QPA plus credible information on the five other circumstances identified in the CAA. For air ambulance services, the guidance notes that the IDRE should consider credible information apart from the QPA “to the extent that” the information clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate for the qualified air ambulance service. Additional guidance is also provided on the amount, timing, and collection of IDRE and administrative fees, including guidance for batched claims and bundled payment. And a set of general surprise billing FAQs for providers was released with, among other things, further guidance on fees.

EBIA Comment: The differentiation between air ambulance and other services reflects the scope of the court’s ruling on the Part II regulations. Because the challenge was brought by health care providers, the court’s ruling did not address the regulations applicable to air ambulance services and, under the process guidance, the QPA retains heightened importance in determining the out-of-network rate for air ambulance services. The federal IDR Portal is now live, so plans and insurers will want to familiarize themselves with these reworked process guides since some timeframes for action are quite short. Keep in mind that further changes may be forthcoming, and litigation by providers may necessitate other changes to the process. For more information, see EBIA’s Health Care Reform manual at Section XII.B.3 (“Surprise Medical Billing: (Emergency and Non-Emergency Services”). See also EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C (“Federally Mandated Benefits”). And don’t miss our upcoming webinar, “Surprise Billing Protections Under the No Surprises Act: What Group Health Plans Should Know” (live on 5/11/2022).

Contributing Editors: EBIA Staff.