Feds Propose Dispute Resolution Changes Under No Surprises Act
By Emma Freer

Heeding physician concerns about logistics and fairness, federal regulators recently proposed a series of changes to the independent dispute resolution (IDR) process through which clinicians can dispute health plans’ initial payment for certain out-of-network care under the No Surprises Act.  

The Texas Medical Association has successfully sued the U.S. departments of Health and Human Services, Labor, and the Treasury four times over their implementation of the law, saying it conflicts with congressional intent and skews the IDR process in payers’ favor. The association’s advocacy continues in the form of closely monitoring the ongoing implementation process and commenting on such proposals.  

“While TMA does not support all the provisions in the latest rule proposal, we greatly appreciate the departments’ efforts to address some of these previously communicated concerns that are so central to a properly functioning Federal IDR process,” TMA President Rick Snyder, MD, wrote in a Jan. 2 letter, singling out “the critical unmet need for the federal IDR process to generate timely payment determinations.” 

Communication is key

For instance, TMA supports several proposed changes intended to improve communication between disputing parties. These include requiring payers to: 

• Use certain indicators when providing an initial payment or notice of denial to help clinicians and health care facilities know which items and services are eligible for the federal IDR process. 
• Disclose the qualifying payment amount (QPA) and certain identifying information at that same point to facilitate open negotiation and, if necessary, the initiation of an IDR process. The QPA is an insurer-calculated amount that certified IDR entities consider, among other factors, when resolving disputes.  
• Include on patient ID cards certain plan information, such as whether it is subject to federal or state surprise-billing protections. 

TMA had a more mixed reaction to the departments’ proposals regarding open negotiation, a 30-business-day period during which the parties can determine an alternate payment amount before initiating the federal IDR process.  

TMA supports requiring the parties to use the federal IDR portal when providing a written open negotiation notice and response, which Dr. Snyder writes could “improve information exchange between the parties and promote efficiencies in the process.” 

But the association opposes certain additional requirements for the initiating party as part of the open negotiation notice. 

TMA also supports requiring the non-initiating party to respond to the open negotiation notice and to provide a counteroffer – or risk consequences. 

“Given the critical importance of encouraging settlements before initiation of the Federal IDR process (and the previously expressed concerns about the lack of participation of some insurers in open negotiations or sometimes failure to even acknowledge receipt of open negotiation notices), TMA also recommends that the Departments direct the [IDR entities] to view a plan or issuer’s failure to provide a response as evidence of bad faith by the plan or issuer,” Dr. Snyder wrote.  

Process problems

On the IDR process front, TMA supports:  

• A new contingency plan in disputes where the parties fail to agree on an IDR entity, and  
• Efforts to ease batching of items and services provided during a single patient encounter. 

But TMA opposes several attempts to limit other flexibilities associated with batching or bundling disputes given the associated burden for physician practices.   

The association also encourages the departments to shorten the cooling-off period – which restricts initiating parties from initiating subsequent disputes with the same other party in certain circumstances – from 90 calendar days to one business day. 

“[W]e note that since plans and issuers have generally not been engaging in negotiation, the cooling-off period has only served to further delay revenue cycles generally,” Dr. Snyder wrote. “This delay in revenue is very challenging for physician practices to shoulder, which heightens the practice viability issues that many physician practices are already facing.”  

Fee concerns

Regarding administrative fees, TMA expressed “serious concerns” regarding a proposed change in how such fees are calculated, citing lack of transparency, among other concerns. The association also opposes the imposition of different payment deadlines for the initiating and non-initiating parties, saying the proposal “adds unnecessary complexity.”   

Lastly, TMA strongly supports requiring plans to register with a centralized IDR registry that would be made available through the portal, saying it would improve transparency, among other benefits. 

Meanwhile, another set of updated rules regarding fees associated with the federal IDR process takes effect Jan. 22. The federal No Surprises Act website includes more information.  

For more on the No Surprises Act and TMA’s related lawsuits, check out the December 2023 issue of Texas Medicine and visit TMA’s surprise-billing resource page.