No Surprise: Independent Dispute Resolution in Trouble

The last week has been a roller-coaster ride for the Centers for Medicare & Medicaid Services (CMS) No Surprises Act (NSA) policies and processes. But roller-coaster rides for CMS’s implementation of the No Surprises Act have become the norm.

A little over a week ago, CMS put up a “closed” sign on its beleaguered Independent Dispute Resolution (IDR) process, and subsequently announced that they were pausing all IDR activities. The IDR process, just as a quick reminder, is the mediation process out-of-network providers can use if they want to argue against the reimbursement amount they received for claims that fall under the No Surprises Act.

At the time of last week’s closing, the IDR process was already extremely backlogged, with IDR entities still making their way through claims from last year.  

CMS said they were pausing the process to give themselves time to digest a U.S. District Court ruling made the week before.

In essence, the Court made two significant decisions. First, the judge discarded a 600-percent increase in fees that CMS had implemented last year for the IDR. The result, for the time being, is that the fee reverts back to the original $50. Second, the judgment also threw out language in the CMS Final Rule governing the federal IDR process, which holds that batching can only be used for the same or similar items and services. The Texas Medical Association (TMA) had argued that batching should also be allowed for items and services that are provided to the same patient during the same encounter.

A day after the CMS announcement that all IDR activities had been stopped, CMS announced that it was switching gears and allowing the IDR process to start back up again for at least some NSA claims – specifically, claims for which the fee had already been paid.

In the meantime, CMS says it will continue to digest the Court’s decision, and the agency promised that it would be forthcoming with guidance on how it will proceed.

An interesting element in all this is that the judge did not throw out the administrative fee increase and CMS’s policy on batching because they were necessarily harmful to providers. Instead, the judge ruled that CMS had not followed proper notice issuance and rulemaking. In other words, CMS could decide to increase the fee again and impose the same batching definition, but this time, make sure it does so through proper rulemaking.

And that just might be an avenue CMS could take, since there is a regulation on the NSA IDR process in its final stages right now. In fact, at the time of this latest Court decision, the regulation was being reviewed by the White House.

In the meantime, last week another district court found in favor of CMS and the government with regard to the No Surprises Act: the court rejected the Association of Air Medical Services (AAMS) claim that the NSA’s methodology for calculating the qualifying payment amount (QPA) violated regulatory procedures.

Which brings us back to our roller-coaster analogy on NSA policy: wins and losses in lawsuits, one after the other; opening, closing, then opening again the IDR process; and CMS going back to the drawing board with a regulation in the works.

Hold on tight, y’all!