Twists and Turns Persist for the No Surprises Act

Well, I’ve got a couple of updates for you in the absolute roller coaster that is the No Surprises Act’s Independent Dispute Resolution (IDR) process!

The federal government officially filed their formal notice of an intent to appeal the ruling on the Texas Medical Association’s (TMA’s) third lawsuit, conveniently called TMA III, regarding the calculation of the qualifying payment amount (QPA) in the IDR process.

There isn’t really any supporting documentation of what exactly their argument will be, but this is the first step in the process after the Centers for Medicare & Medicaid Services (CMS) announced their plans to appeal in guidance released early this month citing the outcomes of the most recent TMA cases. 

This appeal is separate from the government’s appeal of TMA II back in the spring, but will be heard in the same court: the U.S. Court of Appeals for the 5^th Circuit. In that case, both sides have filed their written briefs, and a hearing will likely be scheduled next.

With all this up in the air, and CMS stating that they did not intend to issue interim guidance about the TMA III ruling, given the fact they planned to appeal, some thought we were more in a holding pattern as those appeals played out; after all, there are no lawsuits still pending in Texas courts at this time.

But very late last Friday afternoon, the government issued a proposed rule making changes to the IDR process; although it does not address the TMA ruling directly, it still features quite a few changes that aim to address many of the criticisms the process has faced over the months.

Take, for example, the backlog in the IDR process, which is partially a result of the unexpectedly high numbers of disputes submitted, as well as those that end up being ineligible. Under this new proposal, an eligibility review process the government can invoke when dispute volumes are high would be created, and payers would be required to include additional information in their initial payment or notice of denial of payment that would hopefully make eligibility easier to determine (and open negotiations more meaningful).

Another concern has been the ease of access to the IDR process. Many providers have expressed concern that the process is not as accessible as it should be, whether due to what they believe to be overly restrictive batching rules or the mandatory administrative fee.

The newly released proposed rule appears to address some of these concerns, because it broadens the batching provisions, allowing batching of claims related to a single patient encounter, those billed under the same service code (or a comparable code on a different system), and for certain specialties like anesthesiology, radiology, and pathology. With the proposed changes, those items and services could be billed under service codes belonging to the same Category/CPT code section.

It also proposes that the administrative fee be collected by the government directly from the disputing parties and that a reduced rate be implemented in certain situations where it would be unfair to charge the full amount.

According to the administration, the proposed rule is meant to “improve communication between payers, providers, and certified IDR entities (and) create a more efficient dispute resolution process, (changing) the administrative fee structure to improve accessibility.” In that early October guidance I mentioned, CMS stated that any proposals regarding the QPA methodology would require a lot of resources and take months rather than weeks, so it’s not entirely unlikely that everyone will be waiting for the resolution of the TMA appeals for the next big changes in guidance.

With how many ups and downs the IDR process has gone through lately, you never know!