Late Friday afternoon on December 23, 2022 and well after most had begun celebrating their holiday, CMS quietly announced that it was increasing the non-refundable administrative fee for all IDR filings initiated under the No Surprises Act from $50 per item or service to $350 per item or service commencing January 1, 2023. The fee paid is submitted to the Departments of HHS, Labor and Treasury to administer the Federal IDR process implemented under their rules. Less than two months earlier, CMS announced that the administrative fee would remain the same for 2023. Clearly, a 700% increase is not reasonable under any business standard.
BACKLOG OF DISPUTES NOT THE ONLY ISSUE
CMS indicated in its most recent guidance on December 23, 2022, that due to the “significant backlog of disputes pending eligibility determinations before the certified IDR entities” and to assist the IDR entities in its review of eligibility, the departments have “engaged a contractor and government staff to conduct pre-eligibility reviews,” all in an effort to resolve the dispute backlog and ensure more timely processing of disputes assigned to certified IDR entities. Perhaps, if and when the departments have worked this backlog out, the fee will revert back to the acceptable amount of $50 per item or service.
It is quite obvious that the dispute resolution process implemented by the Departments has created a labyrinth of problems for all parties involved, with no clear end in sight. The complexities of ascertaining if an IDR dispute is subject to a State, Federal or No Surprise Bill requirements under the rules implemented by the Departments requires skills well beyond a medical license or the knowledge base of most certified coders or billers.
CHANGES AND CHALLENGES CONTINUE ELSEWHERE
Other changes made by the Departments, which initially allowed claims to be submitted as a single date of service to then requiring submission by each item or service, increased the cost substantially for out-of-network providers. Moreover, the time-sensitive nature of opening a negotiation and filing for IDR under the NSA leaves many issues to be worked out to determine “eligibility.” Add to that the ongoing litigation in the United States District Court for the Eastern District of Texas challenging the Departments’ rules regarding the QPA and its benefits to payors over providers, and the first year of the NSA can be deemed nothing other than a show of the overly complicated legislation and the failure of the Departments to understand the impact on providers caused by the rules.
Rather than a 700% increase in the administrative fees, a pause on timelines for the filings of IDR disputes would have seemed a much better choice to allow the Departments to catch up on the volume of claims submitted for IDR. The result is to force an even greater financial burden on the backs of skilled surgeons and other out-of-network providers left with the flawed IDR process as the only means to be fairly compensated for life-saving and life-changing complex surgeries and not be left with two unacceptable alternatives: accepting some untouchable and nonreviewable “black-box” median in-network rate calculated by the biased payor (which clearly smacks at the intent of Congress’ transparency bent) or seeking to go in-network under payor terms at declining contract rates designed to drive down overall compensation to the healthcare profession. How providers react and to what extent medical care will suffer has yet to be seen. Stay tuned.
IDR WILL NEED TO BE PART OF REVENUE MANAGEMENT FOR OUT-OF-NETWORK PROVIDERS
Despite this most recent change in the cost of entry, Cohen Howard continues to believe that the IDR process remains an alternative to the equally challenging and far lengthier appeal process under ERISA. Both require a combination of internal operating processes to meet established filing deadlines and payor requirements. Both also require knowledge that combines medical coding and regulation, plan interpretation and explanation of benefit review to be successful in maximizing reimbursement for out-of-network providers. Cohen Howard attorneys and staff have extensive experience in serving out-of-network providers and utilizes its proprietary data and knowledge base to achieve positive results for its clients. To help support the challenges faced by out-of-network providers with this most recent change in fees under the NSA, we work with providers to minimize the up-front cost through creative fee arrangements. Contact us today for more information.
Click here to read the CMS guidance from October 2022 and then revised last week.