Medicare Compliance & Reimbursement

Lawsuits, fee changes, and proposals abound.

Since its inception, turmoil has surrounded the No Surprises Act — and that doesn’t seem to be going away any time soon. Read on for the latest changes on the feds’ surprise billing regulations.

Reminder: Since Congress enacted the No Surprises Act as part of the Consolidated Appropriations Act, 2021 (CAA), there has been a whirlwind of interim final rules, stops and starts, lawsuits, and more. Here’s a brief timeline of the recent history of the legislation and the Centers for Medicare & Medicaid Services (CMS) rules:

• On Dec. 27, 2020, Congress signs the No Surprises Act into law as part of the CAA 2021 (see Medicare Compliance & Reimbursement, Vol.
• On July 13, 2021, CMS publishes an interim final rule with comment period (IFC), the “Requirements Related to Surprise Billing: Part I,” in coordination with the Departments of Health and Human Services (HHS), Labor, and Treasury and the Office of Personnel Management (OPM) (see Medicare Compliance & Reimbursement, Vol. 47, No. 14).
• On Oct. 7, 2021, CMS publishes a second IFC, “Requirements Related to Surprise Billing; Part II” (see Medicare Compliance & Reimbursement, Vol. 47, No. 21).
• December 2021 through March 2022, CMS begins posting No Surprises Act enforcement letters by state (see Medicare Compliance & Reimbursement, Vol. 48, No. 5).
• On Jan. 1, 2022, the No Surprises Act goes into effect. From the get-go, lawsuits ensue targeting the independent dispute resolution (IDR) process, arbitration, and the qualifying payment amount (QPA) provisions.
• On Feb. 24, 2022, the U.S. District Court of Texas rules the arbitration process is unfair (see Medicare Compliance & Reimbursement, Vol. 48, No. 9).
• In April 2022, CMS updates its IDR and QPA guidance on its No Surprises Act portal and website.
• On Aug. 26, 2022, CMS publishes a third rule, “Requirements Related to Surprise Billing: Final Rules” (see Medicare Compliance & Reimbursement, Vol. 48, No. 19).
• On Feb. 10, 2023, CMS instructs certified IDR entities to stop issuing new payment determinations, following another decision in the U.S. District Court of Texas.
• On Feb. 24, 2023, CMS confounds certified IDR entities when it decides to allow them to process payment determination, but only for disputes concerning services that happened before October 25, 2022.
• On March 17, 2023, CMS lifts the IDR dispute timeline restriction.
• On Aug. 3, 2023, the Texas court again rules on the No Surprises Act — this time on the prohibitive fee structure (See Medicare Compliance & Reimbursement, Vol. 48, No. 18).
• On Aug. 25, 2023, the feds temporarily suspend all IDR process operations to address the court’s decision.
• On Sept. 5, 2023, CMS allows certified IDR entities to proceed with eligibility determinations for single and bundled disputes submitted on or before August 3, 2023, but other operations remain suspended.

Here’s a Look at 3 Recent Updates

With more lawsuits on the horizon and older ones still working their way through the courts, CMS and the Departments have published more rules and tweaked the policies … again.

First: On Nov. 3, 2023, CMS published a proposed rule in the Federal Register that aims to improve the Federal IDR process for all involved parties under the No Surprises Act. “Overall, if finalized, this proposed rule would facilitate improved communications between payers, providers, and certified IDR entities; adjust specific timelines and steps of the Federal IDR process; establish new batching provisions; create more efficiencies; and change the administrative fee structure to improve accessibility of the process,” CMS explains in a release on the rule. “It is the Departments’ intention that together, these proposals would result in improved operations of the Federal IDR process and more timely payment determinations.”

Interesting: Comments on the proposed rule closed on Jan. 2, 2024 but on Jan. 17, CMS and the Departments released a notice that they were reopening the comments period. On Jan. 22, they published the reopening in the Federal Register and will now accept comments through Feb. 5.

Last: On Dec. 18, 2023, CMS published another final rule on the No Surprises Act. This one addressed the court ruling on administrative fees. The rule establishes the administrative fee at $115 per arbitration as well as finalizing a fee update timeline and ranges for IDR entity fees. The final rule on fees went into effect on Jan. 22.

“While certainly preferable to an increase from $50 to $350 or $150, the increase to $115 per submission will still pose hurdles to health care providers with lower value claims,” argue attorneys with law firm Arent Fox Schiff. “Although the regulatory framework governing the Act remains in perpetual flux, providers should continue to file timely open negotiation notices with payers and to timely initiate eligible claims for arbitration in accordance with the existing regulations and fee structures,” note the Arent Fox lawyers in online legal analysis.

Resources: Review the notice at https://public-inspection. federalregister.gov/2024-01072.pdf and comment on the proposed rule at www.federalregister.gov/ documents/2024/01/22/2024-01072/federal-independent-dispute-resolution-operations-reopening-of-comment-period. Find the final rule on the IDR process and fees at www.govinfo.gov/ content/pkg/FR-2023-12-21/pdf/2023-27931.pdf.