Yesterday, HHS, the DOL and Treasury released the latest iteration of rulemaking under the No Surprises Act in the interim final rule titled “Requirements Related to Surprise Billing; Part II.” As you may recall, Part I was released in July and was focused on determining the qualified payment amount, post-stabilization care procedures and defining emergency care under the Act, among other provisions. You can read NAHU’s comments on that here. In Part II, the agencies outline the federal independent dispute resolution (IDR) process (also referred to as arbitration), good-faith estimate requirements for uninsured (or self-pay) individuals, patient-provider dispute resolution processes for uninsured (or self-pay) individuals, and external review provisions of the No Surprises Act.

The September 30 rule establishes the federal IDR process that out-of-network (OON) providers, facilities, providers of air ambulance services, plans and issuers in the group and individual markets may use to determine the OON rate for applicable items or services after an unsuccessful open negotiation, or arbitration. It is important to note that not all services are eligible for arbitration. Part I of the rule released in July outlines which services are prohibited from being balance-billed.

Before entering the IDR process, disputing parties must initiate a 30-day “open negotiation” period to determine a payment rate. If negotiation fails, either party may request to enter IDR. The parties then may jointly select a certified IDR entity to resolve the dispute. The certified IDR entity and personnel of the entity assigned to the case must attest that they have no conflicts of interest with either party. If the parties cannot jointly select a certified IDR entity or if the selected certified IDR entity has a conflict of interest, the Departments will select a certified IDR entity. After a certified IDR entity is selected, the parties will submit their offers for payment along with supporting documentation. The certified IDR entity will then issue a binding determination, selecting one of the parties’ offers as the OON payment amount. Both parties must pay an administrative fee ($50 each for 2022) and the non-prevailing party is responsible for the certified IDR entity fee for the use of this process.

When making a payment determination, certified IDR entities must begin with the presumption that the qualified payment amount is the appropriate OON amount. Remember, the rules for determining the QPA were included in Part I earlier this summer and are calculated in a manner that reflects NAHU’s request that a median in-network rate of providers be considered during payment determination.

Parties are able to submit additional information allowed under the statute for IDR and the IDR entity must consider if this information is credible. Any information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA in order for the IDR entity to deviate from the offer closest to the QPA. Without this additional information, the certified IDR entity must select the offer closest to the QPA.

NAHU members have had many questions about the IDR entity certification process and the information IDR entities must submit to be certified as federal IDR entities. The rule provides a process by which members of the public, including providers, facilities, providers of air ambulance services, and plans or issuers, can petition for the denial or revocation of certification of an IDR entity, which we will describe in future communications.

The IDR process is by far the most anticipated aspect of Part II of the final rule. Other requirements that NAHU will highlight in future resources include the requirement for providers to prepare a good-faith estimate for uninsured or self-paying patients. When scheduling an item or service, or if requested by an individual, providers and facilities are required to inquire about the individual’s health insurance status or whether an individual is seeking to have a claim submitted to their health insurance coverage for the care they are seeking.

In addition, there are provisions for situations in which an uninsured or self-paying patient receives a good-faith estimate and is then billed in excess of that estimate and how that patient-provider dispute may be resolved through select dispute resolution (SDR).

The regulations are applicable to group health plans and health insurance issuers for plan and policy years beginning on or after January 1, 2022. The HHS-only regulations that apply to healthcare providers, facilities and providers of air ambulance services are applicable beginning on January 1, 2022. The OPM-only regulations that apply to carriers under the FEHB program are applicable to contract years beginning on or after January 1, 2022. The rules regarding the certification of IDR entities and SDR entities are effective from the date the rule is published in the Federal Register.

NAHU will be commenting on this interim final rule as well as developing resources in our Compliance Corner to assist you and your clients with these changes to the law. To stay up to date with the federal IDR process, sign up for the “No Surprises Act Dispute Resolution” email list by visiting CMS’s Email Updates page, make sure to read your weekly NAHU Washington Update, subscribe to NAHU’s Compliance Now Blog, and subscribe to NAHU’s Healthcare Happy Hour podcast.