The No Surprises Act (NSA) became effective in January 2022 and there have been many starts and stops along the way. Lawsuits initiated by the Texas Medical Association (TMA) successfully challenging many of the rules implemented by government agencies caused several pauses in the Independent Dispute Resolution (IDR) process causing a significant backlog of processing claims initiated for the No Surprises Act arbitrations. While the initial TMA cases have now all been resolved, there remains much to be reported and sorted out under the NSA. Below are a few areas that we anticipate activity in the coming months.
New NSA Data from Departments. The No Surprises Act requires the government agencies to publish on its website certain information about the NSA IDR process. While this information has been published for 2022 and 2023, the pauses in the NSA regulations did not allow for data to be reported for a full six-month period. It is anticipated that data for the first half of 2024 will be reported shortly which will be the first complete six-month dataset of NSA IDR reporting.
New Regulations from Departments. Over a year ago, the agencies proposed additional regulations “intended to address some of the common communication issues between disputing parties, including those stemming from a lack of clarity as to whether items and services are qualified IDR items and services covered by the No Surprises Act.” Under these proposed rules, new requirements would be imposed during the open negotiation period regarding information that parties must share before initiating the Federal independent dispute resolution process for No Surprises Act arbitrations. This would include issuers providing uniform Claim Adjustment Reason Codes (CARCs) and Remittance Advice Remark Codes (RARCs) in response to a claim for payment for health care items or services. These proposed rules would also require plans and issuers to register with the Federal IDR portal to better enable a provider to identify the plan subject to the dispute and determine whether its coverage of an item or service falls under the NSA or State law. Finally, the proposed rules established further requirements and processes as to batching of claims, the timing of payment of the non-refundable administrative fee and several other matters.
As drafted, these rules were anticipated to be released in the summer as certain provisions were to take effect as early as August 15, 2024. In August 2024, provider organizations sent letters to the agencies urging release of the final rules.
Over 100 comment letters were submitted by stakeholders regarding these proposed rules with many suggesting elimination or changes to the proposals. The volume of comments submitted and the past challenges faced by the tri-agencies in the adoption of regulations may explain the delay in the final rules being adopted.
Notwithstanding the delays, it still is expected that the final rules, adjusted for any public comment, will be issued shortly with various effective dates throughout 2025. Once released, we will issue an update on steps providers need to take to ensure continued compliance with the the provisions under the No Surprises Act related to the Independent Dispute Resolution Process and the Qualifying Payment Amount (QPA) as warranted.
Enforcement of IDR Determinations. While the No Surprises Act has provided a means for out-of-network providers to be reimbursed for services in a more balanced approach through the independent dispute resolution process, improper recoupments continue to adversely impact providers. Payors have filed briefs in Court arguing that the determinations of IDR entities are final and binding. Yet, despite these positions in Court, some payors are offsetting awards with purported ‘overpayment’ on claims from yesteryear. While ERISA plans and State laws allow for certain recoupments and offsets, an NSA IDR award is statutorily defined as final and a fixed amount and should be free from any recoupment efforts by payors. Based on the NSA statutory language, offsets and recoupments of NSA awards should be prohibited.
A case currently pending before the United States Court of Appeals for the Fifth Circuit relates to whether providers have the right to file lawsuits to challenge or enforce payment of award determinations through the judicial process. Separate from offsets and recoupments is the failure of payors to timely pay awards within the 30-calendar day required period. The Department of Labor has filed a brief in support of providers having the right to seek enforcement of awards through litigation. In its brief, the DOL noted that ‘Congress specified that a provider is owed a specific amount (as determined by the Certified Independent Dispute Resolutions Entity’s (CIDRE) “binding” award), from a specific source (the insurer who participated in the IDR proceeding), by a specific deadline (within 30 calendar days)’.
This case currently remains pending, and the Court will likely issue a decision in the first half of 2025.
Contact us today with questions about the No Surprises Act arbitration process and how it applies to your practice. As experts in federal (NSA) and state surprise bill claims, CHRMS is a trusted partner for practices seeking to outsource medical billing services. CHRMS offers comprehensive out-of-network billing solutions, from securing GAP exceptions to managing preauthorization, our team is dedicated to helping practices navigate the complex reimbursement challenges effectively.
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