12/14/2023

No Surprises Act Proposed Rule

The U.S. Departments of Health and Human Services (HHS), Labor, Treasury, and the Office of Personnel Management recently released a proposed rule concerning the federal Independent Dispute Resolution (IDR) process under the No Surprises Act (NSA). This rule aims to enhance the IDR process based on feedback and challenges raised by various stakeholders.

The primary objectives are the following:

• Improved Communications: The proposal mandates that when a payer responds to a claim that might fall under the NSA, they must provide comprehensive details about the claim, including the qualifying payment amount (QPA) and contacts for initiating the open negotiation period. This will assist both parties in assessing if the claim is suitable for IDR.

• Mitigation of Challenges in Communication: Payers and providers have expressed difficulties in communication with regard to the NSA. The proposed rule would require payers to provide added details during the initial payment or payment denial stage. This includes the legal names of the plan or issuer and the IDR registration number.

• Use of Specific Codes: The Departments propose that payers use specific claim adjustment reason codes (CARCs) and remittance advice remark codes (RARCs) for efficient communication. This is especially crucial when communicating with an entity with which the payer has no contractual agreement. The goal is to make communication more efficient and reduce the number of ineligible disputes.

• Open Negotiation: The NSA has a 30-business-day open negotiation period. This is designed to allow the disputing parties to reach an agreement without resorting to IDR. Feedback indicates that many parties aren’t genuinely engaging in these negotiations. The Departments propose to enhance the open negotiation requirements to ensure better communication and data exchange.

• Batching: To increase efficiency and reduce costs, the NSA allows multiple items or services to be included in a single dispute. The proposed rule offers more flexibility in this regard. For instance, it suggests that services rendered to a single patient over consecutive days or services billed under the same code can be batched. However, batched disputes would be limited to 25 items or services to ensure timely determinations by IDR entities.

• IDR Eligibility: Determining if a dispute is eligible for IDR has been a bottleneck. The proposal aims to streamline this by requiring IDR entities to ascertain eligibility within five business days and inform both parties and the Departments. Additional information may be requested from the parties to facilitate this process.

• Departmental Eligibility Review: In cases of systemic delays or other extenuating circumstances, the Departments suggest establishing a Departmental eligibility review process. This review would exclusively focus on determining eligibility for IDR and would not delve into payment determinations. Before implementing or concluding this review, the Departments would give public notice explaining the reasons behind their decision.

In essence, the proposed rule’s primary goal is to refine the IDR process. By promoting better communication, streamlining open negotiations, offering more flexibility in batching, and expediting IDR eligibility determinations, the Departments hope to make the process more efficient, transparent, and fair for all parties involved.