The Known, Unknowns of the No Surprises Act IDR Process
By Edward R. Gaines III, JD, CCP, vice president of regulatory affairs and industry liaison, Zotec Partners.
The limited and under-resourced infrastructure established by the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services to determine the disputes between physicians and hospitals versus the health plans known as independent dispute resolution (IDR), established under the No Surprises Act (NSA), has been overwhelmed. We also know that a federal judge in Texas has twice adjudicated HHS’ regulations in the past year to be contrary to the NSA statute.
The court ruled in favor of the Texas Medical Association (TMA) on February 6, 2023. It stated that HHS attempted once again to place its regulatory “thumb” on the scales of justice in favor of the health plans, which violated the express provisions of the NSA. The statute authorizes HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury to issue implementation regulations.
Tens of thousands of backlogged IDR adjudications were made worse when CMS announced an immediate suspension of IDR decisions in light of the second TMA court decision. Also, the February 24, 2023, CMS announcement of the restart of certain pending IDRs with dates of service before October 25, 2022 — the effective date of the HHS final rule which was vacated in the TMA II case — will only partially address the tremendous backlog of IDR cases pending final determination by the IDR entity.
There are two additional lawsuits against the administration’s bungled implementation of the “batching rules” and qualifying payment amount calculations (TMA III). The qualifying payment amount is the median allowed amount by the health plan as of January 31, 2019, adjusted for inflation. Additionally, with the exorbitant, nonrefundable, still unaddressed fee increases (TMA IV), there remain many unknowns and issues regarding the resolution of the pending IDRs.
After grossly underestimating the number of IDRs that HHS expected and, in consequence, creating an under-resourced IDR system, the NSA has become extremely costly for the health care system. With millions of dollars tied up in the IDR process, it is particularly devastating for physician practices. Millions more have been awarded to hospitals and physicians; however, based on feedback from clients and industry associations, most insurance carriers, adjudicated as the loser in IDR, still haven’t paid what is owed.
Below is a summary of the many important questions and outstanding concerns that remain unanswered with severe consequences for healthcare physicians and organizations.