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Tri-Agencies Announce New Surprise Billing IDR Fees While Continuing IDR Suspension After Federal Court Ruling

August 11, 2023

Group health plans and individual and group health insurance subject the federal No Surprises Act (“NSA”) are likely to experience continued delays in their ability to finalize certain claims liability determinations and pay providers for health claims submitted for arbitration under the NSA-established Federal Independent Dispute Resolution (“IDR”) medical claims review process as a result of an August 3, 2023 federal court ruling even as the federal agencies responsible for implementing and enforcing those rules announce new fees for seeking IDR dispute resolution under those rules.

The current rules governing the IDR process are defined by regulations implementing the NSA jointly issued by the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury (collectively, the “Departments”). These rules define the process for out-of-network providers, facilities, and providers of air ambulance services, and group health plans, health insurance issuers in the individual and group markets, and Federal Employee Health Benefits (“FEHB”) carriers (“disputing parties”) to determine the out-of-network rate for out-of-network emergency services and certain items and services provided by out-of-network providers at in-network facilities and out-of-network air ambulance services under the NSA.

IDR Process Suspended

The IDR process currently is suspended following the August 3 , 2023 ruling by the United States District Court for the Eastern District of Texas in Texas Medical Association v. United States Department of Health and Human Services, Case No. 6:23-cv-59-JDK, vacating certain portions of 45 C.F.R. § 149.510, 26 C.F.R. § 54.9816-8T, and 29 C.F.R. § 2590-716-8, which are parallel provisions governing the Federal IDR.

The Court granted summary judgement on August 3, 2023 to the Texas Medical Association and other provider plaintiffs challenging these federal IDR rules for arbitration of health coverage disputes between payers and providers under the No Surprises Act. The Court agreed with the health care providers that the rules violated federal law by failing to take into account the full range of factors Congress directed be considered when enacting the IRO rules as part of the NSA.

Immediately following the Court’s entry of the order, the Departments temporarily suspended the federal IDR medical claims review process including the ability to initiate new disputes and directed certified IDR entities to pause all IDR-related activities in response an the ruling. As a result of the suspension, the Patient-Provider Dispute Resolution Portal also temporarily ceased accepting new initiated disputes.

When announcing the suspension, the Departments said they would review the court’s decision to evaluate changes to current IDR processes, templates, and system updates necessary to comply with the court’s order. The Departments said they will issue updates to these processes in the near future and will provide specific directions to certified IDR entities for resuming all IDR-related activities in a manner consistent with the court’s judgment and order “soon.” Until then, arbitration of disputes between payers and providers under covered employment based group health plans and individual and group health insurance subject to the law will be delayed.

New IDR Fees Announced Amid Suspension

Despite the suspension, the Departments today (August 11, 2023) jointly published the No Surprises Act (NSA) Independent Dispute Resolution (IDR) Administrative Fee Frequently Asked Questions (FAQs).

The FAQs are not announcing the reopening of the Federal IDR portal to initiate new disputes. Accordingly, the IDR process remains in suspension pending further action by the Departments. In the meantime, however, the FAQs clarify the administrative fee amount that each disputing party will be required to pay to engage in the Federal IDR process when the IDR process suspension resumes as a result of the Texas Medical Association opinion and order.

What To Do Now

For health plans and their sponsors and administrators, for example, delays due to the suspension obviously delay payments to providers as many self-insured health plans, their sponsors, fiduciaries, administrators and stop-loss reinsurers approaching year end. Many stop-loss policies and other funding arrangements limit or exclude coverage for plan claims not paid with the policy period or, if the policy includes run off coverage, that brief period following the policy year end. Delays in payment also could complicate year end underwriting for renewals. Employers and unions, their brokers, administrators, fiduciaries and reinsurers should evaluate, monitor and begin strategizing about their response to these developments to prepare for their upcoming renewals and enrollment seasons.

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For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications. As a significant part of her work, Ms. Stamer has worked extensively domestically and internationally with business, government and community leaders to prepare for and deal with pregnancy, disability and other discrimination, leave, health and safety, and other workforce, employee benefit, health care and other operations planning, preparedness and response for more than 35 years. As a part of this work, she regularly advises businesses and government leaders on an on-demand and ongoing basis about preparation of workforce, health care and other business and government policies and practices to deal with management in a wide range of contexts ranging from day to day operations, through times of change and in response to complaints, investigations and enforcement.

Author of a multitude of other highly regarded publications and presentations on MHPAEA and other and health and other benefits, workforce, compliance, workers’ compensation and occupational disease, business disaster and distress and many other topics, Ms. Stamer has worked with health plans, employers, insurers, government leaders and others on these and other health benefit, workforce and performance and other operational and tactical concerns throughout her adult life.

A former lead advisor to the Government of Bolivia on its pension privatization project, Ms. Stamer also has worked domestically and internationally as an advisor to business, community and government leaders on health, severance, disability, pension and other workforce, health care and other reform, as well as regularly advises and defends organizations about the design, administration and defense of their organization’s workforce, employee benefit and compensation, safety, discipline and other management practices and actions.

Board Certified in Labor and Employment Law By the Texas Board of Legal Specialization, Scribe for the ABA JCEB Annual Agency Meeting with OCR, Chair-Elect of the ABA TIPS Medicine and Law Committee, Chair of the ABA International Section Life Sciences Committee, and Past Group Chair and current Welfare Plan Committee Chair of the ABA RPTE Employee Benefits & Other Compensation Group, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her extensive publications and thought leadership as well as leadership involvement in a broad range of other professional and civic organizations. For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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Posted by Cynthia Marcotte Stamer

Surprise Billing IDR Health Plan Dispute Resolution Suspension After Federal Court Ruling Could Impact Plan Renewal Underwriting and Stop-Loss Coverage

August 4, 2023

Group health plans and individual and group health insurance subject the federal No Surprises Act may experience delays in their ability to finalize liability determinations and pay providers for health claims submitted for arbitration under federal surprise billing rules as a result of an August 3, 2023 federal court ruling.

Effective August 3, 2023, the Departments of Health and Human Services Centers for Medicare and Medicaid Services, Department of Labor Employee Benefit Security Administration and Department of Treasury (“Departments”) temporarily suspended the Federal Independent Dispute Resolution (IDR) medical claims review process including the ability to initiate new disputes and directed certified IDR entities to pause all IDR-related activities in response an August 3, 2023, federal court ruling. As a result of the suspension, the Patient-Provider Dispute Resolution Portal also temporarily ceased accepting new initiated disputes.

Earlier in the day, the U.S. District Court for the Eastern District of Texas issued a judgment and order in Texas Medical Association, et al. v. United States Department of Health and Human Services, Case No. 6:23-cv-59-JDK (TMA IV), vacating certain portions of 45 C.F.R. § 149.510, 26 C.F.R. § 54.9816-8T, and 29 C.F.R. § 2590-716-8, which are parallel provisions governing the Federal IDR.

The order of the Court grants summary judgement to the Texas Medical Association and other provider plaintiffs challenge to federal rules for arbitration of health coverage disputes between payers and providers under the No Surprises Act. The Court agreed with the health care providers that the rules violated federal law by failing to take into account the full range of factors Congress directed be considered when enacting the IRO rules as part of the No Surprises Act.

When announcing the suspension, the Departments said currently they are reviewing the court’s decision and evaluating current IDR processes, templates, and system updates necessary to comply with the court’s order. The Departments say they will issue updates in the near future and will provide specific directions to certified IDR entities for resuming all IDR-related activities in a manner consistent with the court’s judgment and order.  

Until then, arbitration of disputes between payers and providers under covered employment based group health plans and individual and group health insurance subject to the law will be delayed.

A lengthy delay in the Departments’ correction of their rules could spell headaches for both payers and providers. Delays in claim resolutions due to the suspension obviously delays determination of plan liabilities can particularly impact self-insured health plans, their sponsors, fiduciaries, administrators and stop-loss reinsurers of plans approaching year end. Many stop-loss policies and other funding arrangements limit or exclude coverage for plan claims not paid with the policy period or, if the policy includes run off coverage, that brief period following the policy year end. Delays in payment also could complicate year end underwriting for renewals. Employers and unions, their brokers, administrators, fiduciaries and reinsurers should evaluate, monitor and begin strategizing about their response to these developments to prepare for their upcoming renewals and enrollment seasons.