No Surprises Act DisputesOn Hold

Providers and patients attempting to initiate Federal disputes are discovering another delay due to an August 3, 3023, ruling of the U.S. District Court for the Eastern District of Texas.

The most recent lawsuit the Texas Medical Association brought forth primarily relates to the steep increase in the administrative fee from $50 in 2022 to $350 in 2023. The other aspect of the Independent Dispute Resolution (IDR) process being contested is the criteria for batching claims.

Congress enacted the No Surprises Act in 2020 to address balance billing by out-of-network facilities and providers for emergency services and with out-of-network providers for certain non-emergency services furnished at in-network facilities by out-of-network providers

The Act also addresses the payment of these out-of-network services by health plans When open negotiations between providers and payers are not productive, a dispute can be initiated through the federal dispute resolution process. The non-refundable administrative IDRfee paid by both parties jumped from $50 to $350, making it cost-prohibitive for the providers in many situations.

The lawsuit contends that the fee increase is not in line with the regulations of the NSA. The Act states that the Departments, identified as the Department of Labor, Department of Health and Human Services, and Department of Treasury, establish the fee amount to cover expenses of the dispute process.

The administrative fee, established in guidance published annually, was initially kept at $50 in the September ruling but dramatically increased to $350 in December, citing a surge in the volume of disputes and burgeoning costs associated with conducting dispute eligibility.

The Act also instructs the Department to create rules for batching disputes. Batching permits providers to bring several distinct items and services for consideration in one IDRarbitration if certain criteria are met The Act specifies that items and services may be batched if:

No-Surprises-Act pdf (naag org)

(i)such items and services to be included in such determination are furnished by the same provider or facility;

(ii)payment for such items and services is required to be made by the same group health plan or health insurance issuer;

(iii)such items and services are related to the treatment of a similar condition; and

(iv)such items and services were furnished during the 30 days following the date on which the first item or service included with respect to such determination was furnished or an alternative period as determined by the Secretary for use in limited situations, such as by the consent of the parties or in the case of low-volume items and services, to encourage procedural efficiency and minimize health plan and provider administrative costs

The plaintiffs in the lawsuit are challenging that there is only one requirement that corresponds to the Act?s related items and services requirement: eCFR:: 45 CFR149 510 -- Independent dispute resolution process

§ 149 510(c)(3)(i)(C): The qualified IDRitems and services are the same or similar items and services. The qualified IDRitems and services are considered to be the same or similar items or services if each is billed under the same service code or a comparable code under a different procedural code system, such as Current Procedural Terminology (CPT) codes with modifiers, if applicable, Healthcare Common Procedure Coding System (HCPCS) with modifiers, if applicable, or Diagnosis-Related Group (DRG) codes with modifiers, if applicable

The plaintiffs alleged that the increased administrative fee and the batching requirements ?were unlawfully issued without notice and comment and therefore must be set aside ?Secondly, they contend the rules are arbitrary and capricious because the Department failed to consider the ?adverse effects their decisions would have on providers?ability to access the IDRprocess.?

The Departments contend that the administrative fee and batching are exempt from notice and comment.

The court agreed that the Departments failed to provide notice and comment on the administrative fee and batching violated the Administrative Procedure Act ?It is therefore contrary to law and must be set aside.?The Departments are reviewing the court?s decision and evaluating current IDRprocesses, templates and system updates necessary to comply with the court?s order. The CMSalso reports that the Patient-Provider Dispute Resolution Portal is temporarily not accepting newly initiated disputes