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Biden-Harris Administration Advances Efforts to Improve the Surprise Billing Payment Dispute Process

The Biden-Harris Administration (the Administration), through the Departments of Health and Human Services (HHS), Labor, and the Treasury (the Departments), along with the Office of Personnel Management (OPM), released a proposed rule on the No Surprises Act’s Federal independent dispute resolution (IDR) process. The Administration has demonstrated its commitment to implementing the No Surprises Act (NSA) to protect consumers from surprise billing and is consistently making progress in improving the Federal IDR process. The Federal IDR process is a mechanism that providers (including air ambulance providers), facilities, and health plans can use to resolve payment disputes for certain out-of-network charges. The proposed rule, if finalized, would improve communications between payers, providers, and certified IDR entities who make payment determinations; adjust Federal IDR timelines; establish new batching criteria; create a more efficient Federal IDR process; and change the administrative fee structure to improve accessibility of the process.

“The Biden-Harris Administration continues to take actions to protect patients from junk health insurance and unfair billing practices. This rule is the next step in ensuring we take patients out of the middle of billing disputes between insurers and health care providers,” said HHS Secretary Xavier Becerra. “Eliminating surprise medical bills, reducing the burden of medical debt, and curtailing junk insurance plans continue to be high priorities. HHS will continue to do everything in our power to protect patients.”

“The No Surprises Act continues to protect consumers from surprise medical bills,” said CMS Administrator Chiquita Brooks-LaSure. “The Biden-Harris Administration continues to demonstrate a commitment to implementing the law for the American people. Today’s proposed rule will strengthen the communication between health care payers and providers and improve upon the independent dispute resolution process.”

Communication Between Payers and Providers

In response to feedback from payers and providers and to ensure that all parties have the information necessary to determine whether a payment dispute is eligible for the Federal IDR process, the Departments are proposing that payers be required to provide additional information at the time of initial payment or notice of denial of payment. The Departments also propose to require that payers use standardized codes to communicate whether a claim for an item or service furnished by an out-of-network provider or facility is or is not subject to the NSA’s surprise billing provisions and the Federal IDR process. These proposed changes would benefit all disputing parties and reduce the number of ineligible disputes that are submitted to the Federal IDR process.

Open Negotiation and IDR Initiation

The Departments propose several changes to the open negotiation process to encourage disputing parties to engage in meaningful open negotiations before initiating the Federal IDR process. First, the Departments propose to centralize the open negotiation process through the Federal IDR portal. Under this proposed rule, a party choosing to initiate open negotiation must provide an open negotiation notice and a copy of the remittance advice or notice of denial of payment to the other party and the Departments through the Federal IDR portal. Under the current process, a party must contact the other party directly to initiate open negotiations, which has resulted in uncertainty as to whether open negotiation was ever properly initiated.

Additionally, the Departments propose to include new content elements in the open negotiation notice, such as the plan type, the location of service, and the claim number, to help parties identify the relevant item or service and whether the Federal IDR process applies. The Departments also propose provisions that would help ensure parties respond to open negotiation notices and engage with one another during the open negotiation period.

This proposed rule, if finalized, also would revise the process for initiating the Federal IDR process. Specifically, the proposed rule would amend the requirements for the content of the notice of IDR initiation and establish new requirements for a notice of IDR initiation response from the non-initiating party.

IDR Eligibility and Administrative Fee

Eligibility determinations for the Federal IDR process have proven to be complex, time-consuming, and resource-intensive, and certified IDR entities are often uncompensated for such eligibility work. The delays in determining eligibility have impeded certified IDR entities’ ability to make timely payment determinations. This proposed rule would establish a Departmental eligibility review process that could be invoked when dispute volume is high so that the Departments could support eligibility determinations to facilitate faster dispute processing.

As required by statute, both parties to a dispute must pay a non-refundable administrative fee for participating in the Federal IDR process to ensure that the process is financially self-sustaining. To improve efficiency, the Departments propose to collect the non-refundable administrative fee directly from the disputing parties and layout requirements for when the initiating and non-initiating parties would be required to pay the fee. Further, the Departments propose consequences for failing to pay the fees associated with the Federal IDR process on time.

Additionally, the Departments are proposing a reduced administrative fee structure and amounts for parties in low-dollar disputes to promote equitable access to initiate the Federal IDR process, as well as a reduced administrative fee for non-initiating parties in ineligible disputes.

Batching

Some interested parties have recommended that the Departments provide more flexibility on the ability to include multiple items or services as separate payment determinations in a single dispute (referred to as a “batched dispute”) to improve efficiency and minimize costs for disputing parties. After carefully reviewing this input, the Departments propose new batching provisions to allow qualified IDR items and services to be batched in order to address the unique circumstances of certain medical specialties and provider types.

In combination, the proposed changes in this rule would help improve timely payment determinations and create a more efficient Federal IDR process.

For a fact sheet on the Federal Independent Dispute Resolution (IDR) Process proposed rule, please visit: https://www.cms.gov/newsroom/fact-sheets/no-surprises-act-independent-dispute-resolution-process-proposed-rule-fact-sheet

To view the Independent Dispute Resolution (IDR) Process proposed rule, please visit: https://www.federalregister.gov/public-inspection/current