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No Surprises Act Update: New federal IDR Guidance released

May 26, 2022

By: Andrea Greenblatt

On April 12, 2022, the Centers for Medicare & Medicaid Services (“CMS”) issued new guidance regarding the federal Independent Dispute Resolution (IDR) process, created under the No Surprises Act (NSA) to provide a mechanism for payers and providers to resolve disputes pertaining to the appropriate reimbursement amount for certain qualifying out-of-network claims.[1]

The prior guidance was withdrawn in response to a successful legal challenge to the Departments of Health and Human Services, Labor and Treasury (the “Departments”) Interim Rule (“Rule”), implementing the IDR process. In Texas Med. Assoc. v. U.S. Dep’t. Health and Human Servs., the Texas district court vacated the portion of the IDR process requiring the independent certified IDR entities to begin with the presumption that the qualifying payment amount (“QPA”)—the median of the contracted rates—is the appropriate out-of-network rate for the qualified item or service under consideration and to select the amount closest to the QPA when choosing between the parties’ proposed payment offers.[2]

The revised guidance has removed such portions pertaining to the QPA. However, it still requires certified IDR entities to consider the QPA and additional credible factors that either party submits or that is requested by the entities, such as:

  • Level of training, experience, and quality and outcomes measurements of the provider or facility that furnished the qualified item or service
  • Market share held by the provider or facility or that of the plan in the geographic region in which the qualified item or service was provided
  • Acuity of the enrollee receiving the qualified item or service, or the complexity of furnishing the qualified item or service to the enrollee
  • Teaching status, case mix, and scope of services of the facility that furnished the qualified item or service
  • Demonstration of good faith efforts (or lack thereof) made by the provider or facility or the plan to enter into network agreements with each other, and, if applicable, contracted rates between the provider or facility, as applicable, and the plan during the prior 4 plan years

Additionally, the new guidance clarifies that the certified IDR entities are not responsible for determining whether the QPA has been calculated correctly by the plan. However, they are encouraged to notify the Departments, through the Federal IDR portal, if they believe that the QPA has not been calculated correctly.

On Friday, April 22, 2022, the U.S. Department of Health and Human Services (“HHS”) filed its notice of appeal with the Texas district court.[3] Until the appeal is heard by a federal circuit court, this new guidance prevails.

Well-versed in negotiating payment rates and navigating the IDR arbitration process, the Wolfe Pincavage team guides providers and medical groups through every aspect of the No Surprise Act.

[1] Federal Independent Dispute Resolution (IDR) Process Guidance for Certified IDR Entities.

[2] Tex. Med. Ass’n v. U.S. Dep’t. of Health and Human Servs., No. 6:21-cv-425-JDK, 2022 U.S. Dist. LEXIS 31807 (E.D. Tex. Feb. 23, 2022).

[3] Notice of Appeal, Tex. Med. Ass’n v. U.S. Dep’t of Health and Human Servs., (No. 6:21-cv-425-JDK), 2022 U.S. Dist. LEXIS 31807 (E.D. Tex. Apr. 22, 2022)