Nearly three years after the No Surprises Act (“NSA”) became effective, there have been many surprises along the way. From the four lawsuits by the Texas Medical Association challenging the implementation of the Act, revisions to rules put forth by the Departments and several pauses along the way, the NSA has certainly had a bumpy start. The 5th Circuit decision in TMA II resolved the last remaining issues from the initial TMA lawsuits. To date, government data reports a high level of success for out-of-network providers under the NSA IDR arbitration making it a good, viable process for resolution of payment disputes with insurance companies while achieving the primary goal of limiting patient liability to in-network cost sharing. While rules proposed last November are expected to be issued shortly to further revise and enhance transparency in the process and seek to increase claim resolution during the negotiation process, the practical aspects of the NSA continue to create challenges for all parties. We highlight here four areas that providers need to be aware of as they tackle the NSA.
Independent Disputes Resolution (IDR) Entity Selection Process. With IDR entities building reputations as “pro-provider” and “pro-insurance” company, the NSA IDR selection process plays a critical role in the success of the IDR process. While the NSA requires that the initiating party (IP)- most always the provider- make the initial selection of the IDR entity for a dispute, it gives the -Non-Initiating Party (NIP)- most always the payor- three business days to object to the selection and provide an alternative IDR entity. In turn, IP’s then are required to object to the selection by the NIP during the same three business day period, which results in the government picking a random IDR entity. However, if the IP party fails to timely provide an alternative IDR entity, the IDR entity selected by the NIP becoming the IDR entity for the dispute.
Today, many NIP’s have instituted the tactic of waiting until the last minute (literally sometimes 11:59 PM on the third business day) to reselect an IDR entity precluding the IP to timely object to the NIP’s IDR entity choice.
Recently, in NEUROLOGICAL SURGERY PRACTICE OF LONG ISLAND, PLLC, Plaintiff, vs UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (Case No. 2:24-cv-4503-HG), the plaintiff challenged these very tactics as unfairly violating the intent and purpose of the NSA. In its complaint, plaintiff stated the following:
“As alleged below, starting in or around four months ago, the payers embarked upon a strategy of waiting until the very end of the three-business day period – and either after or right before regular business hours end – to propose an alternative IDR entity. This tactic effectively denies the Practice and other providers the ability to object to the payers’ alternative IDR entity selections and guarantees that the IDR entities specifically chosen by the payers are the ones selected to preside over IDR proceedings.”
This case is in its early stages and the government has indicated an intent to file a motion to dismiss. Further, the proposed regulations that are expected to be finalized shortly also make adjustments to the selection process. Pending the outcome of this litigation and adoption of final rules, initiating parties should establish a process to manage these last-minute reselections by NIPs.
Non-Eligible Disputes. Under the NSA, if the NIP believes that an initiated dispute is not eligible under the NSA, the NIP is required to object during the IDR selection process. Specifically, the regulations provide:
“if the non-initiating party believes that the Federal IDR process is not applicable, the non-initiating party must also provide information regarding the Federal IDR process’s inapplicability through the Federal IDR portal by the same date that the notice of certified IDR entity selection must be submitted.”
In many instances, eligibility objections are being made by NIP throughout the IDR process, including even after an award determination. And, despite the specific rules requiring objection during the selection process, IDR entities are entertaining these objections and closing cases, even where an award has been issued. This has led to ongoing management of this process, aggressive responses to these wrongly closed disputes and further confusion in the IDR process. Again, the expected new rules are expected to clarify this process.
Additional Information Requests. The NSA provides that a party may request additional information during the IDR process to verify that a claim is eligible for the IDR process. Payors continue to request information from initiating parties that was previously provided by an IP in an effort to slow down the process and/or have a dispute dismissed because an initiating party fails to timely respond to a request. Other times, entities will assert that a dispute is subject to State law when it is not. For example, while New York and New Jersey both have State specified laws, those laws only apply to policies issued in those states. Similarly, some State Specified Laws only apply to certain services and many IDR entities eligibility determinations are incorrect on these issues. It is important for providers to timely respond to these requests with specific detailed support as to NSA eligibility as many IDR entities will close disputes if responses are not made within the three to five business day period.
Independent Dispute Resolutions (IDR) Award Determinations. Under the No urprises Act, an IDR entity is required to make a determination of a dispute within 30 business days of the date of the IDR submission. While there has been delay in this process due to the volume of submitted disputes, IDR entities have been improving in meeting this timeline. Yet, even when an IDR entity selects the provider offer amount as the best value for the item or service code, insurance companies continue to be slow in processing payment.
Under the NSA, payors are required to make payment on an award within 30 calendar days of the determination. While there are occasions where payment is timely made, in the vast majority of disputes, payment is made well beyond this statutory deadline or not at all. The NSA provides no penalty for these late payments. Recently, several members of Congress introduced a bill to tackle this issue. https://murphy.house.gov/media/press-releases/murphy-introduces-legislation-improve-enforcement-no-surprises-act
There has also been several lawsuits on this matter with differing outcomes. One Court in NJ has stated that an IDR determination can be enforced through judicial process while several other Courts have ruled that providers have no standing under the NSA to enforce an award. This has left providers without recourse despite achieving success under the NSA and having to expend additional resources to collect IDR awards from payors.
Currently, there is a case pending before the United States Court of Appeals for the Fifth Circuit regarding the right of providers to challenge an IDR determination. Interestingly, unlike the Texas Medical Associations cases in which the government sided with payors, the Departments have filed a brief in support of providers in the case. The Departments clearly support providers having the right to judicial enforcement with the following excerpt from its brief:
“The IDR process would make little sense if the parties to a Certified Independent Dispute Resolution Entity’s (CIDRE) payment determination lacked a means for judicial enforcement. The No Surprises Act’s text, structure, purpose, and history support judicial enforcement of the payment determinations.”
This case has not yet been fully briefed and the decision of the 5th Circuit will have significant implications in the right of parties to challenge determinations through judicial process, absent Congressional intervention or further regulations from the Departments.
The No Suprises Act will continue to evolve. With a new administration and Congress in 2025, we can expect more changes to the NSA and will continue to update with additional information.
Please be sure to reach out to us should you need No Surprises Act arbitration assistance through our affiliate CH Revenue Management Solutions (CHRMS). You can choose CHRMS to handle your reimbursements from the start or partner with us for your practice’s specific needs at any stage of the claims management process. Our team not only has expertise with surprise bill claims but CHRMS offers out-of-network medical billing services including securing pre-authorizations and GAP exceptions for patients that do not have out-of-network benefits. We are an end-to-end solution for out-of-network providers.
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