As the Federal agencies tasked with implementing the No Surprises Act continue to work through the backlog of disputes that have been stuck in the IDR process with the contractors hired by the Federal government to administer dispute resolutions (referred to as certified independent dispute resolution entities or IDREs), several recent announcements have been made that are important for providers who are seeking to have disputes resolved under the Federal IDR process.
- IDRE Reselection Process: As has been the case since the initial implementation of the No Surprises Act, under the Federal IDR process, disputing parties must agree on an IDRE to administer the dispute resolution, and where the parties cannot agree, the regulations allow for the federal agencies to randomly assign the IDRE. Until recently, this “back-and-forth” of selecting an IDRE has been primarily conducted via email communications. Beginning on December 12th, the U.S. Department of Health and Human Services (HHS) launched a new web functionality intended to streamline this process during the “initiation of IDR” phase. The new form is referred to as the “IDR Entity Reselection Response Form.” HHS has released an instructional video for disputing parties to familiarize themselves with the new process.
- New Requirement for Parties Challenging IDR Initiation to Provide Documentation: The Centers for Medicare and Medicaid Services (CMS) made a positive announcement that, beginning the week of December 19th, parties that are challenging IDR initiation must now provide documentation in support of their challenge rather than just making unsubstantiated accusations that can slow down the IDR process. As described in the CMS announcement, instances that will now require documentation from health plans when making a challenge to Federal IDR initiation include:
- “Specified State Law or All-Payer Model Agreement”: If an entity attests that a dispute is eligible for a state process to determine the out-of-network rate, the entity must provide: specific citation(s) for the state law or regulation that constitutes a specified state law or all-payer model agreement that applies to the items or services in the dispute; and documentation that confirms that the state law applies, including proof of the health plan type.
- “Open Negotiation Not Completed”: If an entity attests that the open negotiation period was not completed for a dispute, the entity must provide: the date when the open negotiation period will be completed; and documentation that confirms the open negotiation start date.
- “Late IDR Initiation”: If an entity attests that more than four business days have elapsed since the open negotiation period ended, the entity must provide: the date that was the last day in the four business day period after the open negotiation period; and documentation that confirms when the open negotiation period was initiated for the claim or claims subject to the dispute.
- “Not Covered by NSA”:
- If an entity attests that a dispute includes items or services not covered under the No Surprises Act, the entity must provide a list of which items and services included in the dispute were not covered under the No Surprises Act and, for each item or service listed, an explanation as to why it is not covered under the No Surprises Act.
- If an entity attests that a dispute includes items or services that are covered by a coverage type not subject to the No Surprises Act, the entity must provide a list of items or services covered by the coverage type not subject to the No Surprises Act and the coverage type that applies to them.
- If an entity attests that the coverage year for an item or service in a dispute started prior to the No Surprises Act implementation date of January 1, 2022, the entity must provide: the plan or policy year associated with the dispute; and documentation to confirm the date that the plan or policy year started.
- “Not Covered by Current Insurance Policy”: If an entity attests that the dispute includes items or services not covered by the patient’s insurance policy, the entity must provide: a list of items or services in the dispute that are not covered; and documentation that confirms these items or services are not covered by the patient’s insurance policy (such as a copy of the policy).
- “Improperly Batched or Bundled”: If an entity attests that a dispute includes items or services that were improperly batched or bundled, the entity must provide a list of the items or services that were improperly batched or bundled, and for each item or service on the list, indicate the batching or bundling requirement that was not met.
- “Cooling Off Period Not Completed”: If an entity attests that a 90-calendar-day cooling off period applies to the dispute and has not been completed, the entity must provide: the dispute number for the payment determination that initiated the 90-calendar-day cooling off period; and a copy of the payment determination that initiated the 90-calendar-day cooling off period.