This is an update on two issues related to the No Surprises Act (“NSA”), part of the Consolidated Appropriations Act of 2021: (1) the suspension by the Centers for Medicare & Medicaid Services (“CMS”) of surprise billing independent dispute resolution (“IDR”) determinations; and (2) an update on the reporting requirements for air ambulance services.
Suspension of the IDR Process
The NSA generally limits the amount patients can be required to pay for certain out-of-network services, including emergency services, and certain non-emergency services when performed at in-network facilities. The NSA provides for use of an IDR process when a provider disagrees with the pricing of a claim and is unable to reach an agreement with the plan. As discussed in our March 23, 2022 Benefits Update, the U.S. District Court for the Eastern District of Texas vacated certain provisions of the interim final rule implementing the IDR process, holding that the interim final rule gave undue weight to the Qualifying Payment Amount (“QPA”)—generally the median of contracted rates for a specific service in the same geographic region—in evaluating which of two proposed rates is appropriate. On August 26, 2022, the Departments of the Treasury, Labor, and Health and Human Services (the “Departments”) issued a revised final rule that removed the presumption that the rate closest to the QPA was appropriate, but still required arbitrators to consider the QPA first before considering non-QPA factors.
The same parties challenged the revised rule, and on February 6, 2023, in Texas Medical Association v. United States Department of Health and Human Services, the Court vacated certain provisions of the revised final rule, holding that it improperly restricted the discretion granted to IDR arbitrators under the NSA. In response, CMS has directed certified IDR entities to immediately cease issuing new payment determinations until further notice. CMS clarified that it does not consider disputes involving services furnished before October 25, 2022 (the effective date of the revised final rule) to be subject to the Court’s order and instructed IDR entities to resume processing payment determinations for those disputes. However, with respect to services furnished on or after October 25, 2022, IDR entities are instructed to hold payment determinations until after further guidance is issued. CMS did not provide a timeline for when such further guidance will be issued.
Air Ambulance Reporting
The NSA generally prohibits balance billing for out-of-network air ambulance services and requires plans to report detailed claims data related to such services. On September 16, 2021, the Departments published a proposed rule implementing the NSA reporting requirements. The proposed rule requires self-insured and insured group health plans to collect and submit certain data regarding air ambulance services for the 2022 and 2023 calendar years, which the Department of Health and Human Services will use to produce a comprehensive public report on air ambulance services. The proposed rule, which was drafted based on the expectation that the rulemaking would be finalized during 2021, requires that data for the 2022 calendar year must be submitted by March 31, 2023 and for the 2023 calendar year by March 30, 2024. However, because the rule has not yet been finalized, CMS announced that these reporting deadlines have been postponed and that data collection will not begin until after the final rules are published. CMS did not provide a timeline for when the final rules will be published.
We will continue to monitor these issues, including any updated guidance or changes adopted as part of a final rule. Please contact Slevin & Hart for more information about how these issues affect your plan.
This publication is intended to provide general information only, and is not intended to provide legal advice. The distribution of our publications is not intended to create, and receipt of them does not constitute, an attorney-client relationship. Permission is granted to make and redistribute, without charge, copies of this entire document provided that such copies are complete and unaltered and identify Slevin & Hart, P.C. as the author. All other rights reserved.