Activity Related to the No Surprises Act Continues to Surprise, with No Slowdown in Sight

The Centers for Medicare & Medicaid Services (CMS) can’t seem to catch a break of late. 2023 has been a tough year for the agency, with the court system and Congress dealing it repeated blows, primarily over enactment of the No Surprises Act (NSA).

Many are undoubtedly at least somewhat familiar with the NSA as the law that protects consumers from most instances of “surprise” medical bills, such as those for out-of-network care at an in-network hospital. But were you aware that it’s been the subject of four recent lawsuits and multiple congressional hearings?

And were you aware that of those lawsuits and hearings, all have attacked the NSA, and both directly and indirectly CMS, for difficulties like improper implementation, unintended consequences, and massive backlogs associated with its touted dispute resolution process?

Let’s take a quick look at two of the most recent happenings around the ever-contentious bill, and what CMS has done amid the controversy.

Last week, the influential U.S. House of Representatives Ways and Means Committee held a hearing on perceived failings of the NSA, illustratively titled “Reduced Care for Patients: Fallout from Flawed Implementation of Surprise Medical Billing Protections.”

Committee members from both parties expressed dismay over challenges associated with application of the law, and concerns about implications for patient costs and access to care.

Additionally, the Committee heard testimony that generally called for enhanced enforcement and changes to address certain insurer practices, including low reimbursements, shrinking provider networks, and failure to pay claims in a timely manner.

Significant worries were also raised regarding the law’s Independent Dispute Resolution (IDR) process, including the impact of the closure of the IDR submission portal in response to court cases.

Now, regarding the court cases, this hearing came roughly a month after the most recent court decision was handed down by a federal judge in Texas, yet again invalidating portions of the NSA and forcing CMS to temporarily suspend the IDR process.

Prior to that ruling, the same court and same judge invalidated the amount set by CMS for two fees paid by parties engaging in the IDR process: the administrative fee and the certified IDR entity fee.

As a result, CMS released a proposed rule last week addressing the IDR fees, while also directing IDR entities – those that evaluate and decide IDR disputes – to resume processing all single and bundled IDR disputes submitted on or before Aug. 3 of this year.

Specifically, the proposed rule lists the amount of the administrative fee to be $150 per party, up from $50 currently, and notes that an IDR entity can charge up to $840 for single determinations and nearly $1,200 for batched decisions. That’s up almost $150 for single determinations and nearly $300 for batched decisions, compared to the current fees.

While this certainly doesn’t sound like CMS is lowering the cost for providers to dispute a claim, the agency is hoping that by putting the fee rates through notice and comment rulemaking, the court’s concerns will be assuaged.

Given the time needed for CMS to collect comments on its proposed rule, plus draft and publish a final rule, the new fee structures appear likely to take effect around early next year.

And although IDR entities have resumed processing claims submitted on or before Aug. 3, the ability to initiate new disputes is currently unavailable.

For someone who’s looking, the NSA is constantly in the news. But whether you’re paying attention or not, the law continues to evolve as a result of a back-and-forth of sorts between the courts and CMS, with added pressure applied from Congress.

So keep an eye on what happens next, because the NSA touches most key areas of the healthcare industry, and the way it is applied can change in a hurry.