Agencies Issue Checklist for Surprise Billing IDR Process

In response to questions and complaints, the IRS, DOL, and HHS have jointly issued a checklist of federal independent dispute resolution (IDR) and related requirements to help plan sponsors and insurers understand their obligations when processing claims for items and services that fall within the scope of the surprise medical billing protections of the No Surprises Act, enacted as part of the Consolidated Appropriations Act, 2021 (CAA). As background, these provisions of the CAA are intended to shield individuals from surprise medical bills for emergency services, air ambulance services furnished by nonparticipating providers (i.e., out-of-network providers or other providers that do not have contractual relationships with the plan), and non-emergency services furnished by nonparticipating providers at in-network facilities in certain circumstances (see our Checkpoint article). Two sets of interim final regulations address, among other things, participant cost-sharing for services subject to the CAA, requirements for initial payment and disclosures by the plan or insurer to the provider, and the open negotiation and IDR process to be used if the parties cannot reach agreement on the payment amount (see our Checkpoint article). The regulations also address procedural aspects of plan payments to nonparticipating providers and explain the role of certified IDR entities, the parties’ submission of proposed payment amounts, and factors certified IDR entities may consider in selecting a party’s payment amount (see our Checkpoint article).

Explaining that most questions and complaints received to date by the No Surprises Help Desk relate to sending the initial payment or notice of denial (and the associated required disclosures) and providing information about the open negotiation period, the agencies outline the specific steps to follow to comply with these requirements. The checklist is organized in categories addressing these issues and others including the requirement to process claims within 30 days and how to initiate the federal IDR process. The agencies note that they have received complaints that some plans and insurers are requiring providers and facilities to initiate the open negotiation period through an insurer-hosted portal which may not allow for the submission of the standard notice to initiate open negotiation, as described under the regulations.

EBIA Comment: This checklist brings some practical clarity to the surprise medical billing IDR process. Keep in mind that the agencies have recently revised their IDR process guides, and the HHS IDR portal is “live” (see our Checkpoint article). For more information, see EBIA’s Health Care Reform manual at Section XXII.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”).

Contributing Editors: EBIA Staff.

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