The No Surprises Act (the “NSA”), which was enacted as part of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) provides protections to privately insured patients against “surprise billing” with respect to emergency services, non-emergency services provided by out-of-network providers at in-network health care facilities, and air ambulance services furnished by out-of-network providers. As part of those protections, the NSA established a Federal Independent Dispute Resolution (IDR) process for insurers and health care providers and facilities to resolve reimbursement disputes covered under the NSA.
Under the IDR process, payors and providers can submit a dispute to the IDR process if the parties cannot agree upon a payment amount during a 30-day negotiation period. An independent entity, which is either jointly selected by the disputing parties or selected by the Departments, will consider the payments and supporting documentation proffered by both parties to determine the proper reimbursement rate for the services at issue in the IDR dispute.
In a 2021 interim final rule, the Departments of Health and Human Services (HHS), Labor, and the Treasury (together, the “Departments”) estimated only 17,333 IDR claims would be submitted each year. This projection appears to have been overly optimistic as the number of claims actually submitted was more than 5 times the Departments’ projections. In a recent report published by the Departments, data from the Centers for Medicare & Medicaid Services (“CMS”) showed that there were over 90,000 disputes submitted in the first six months of the program taking effect (from April 15th through September 30th), with the number of submitted claims growing nearly four-fold in the third quarter. The Departments acknowledged that “parties have been submitting significantly more disputes than the Departments initially projected.” Moreover, the Departments indicated that “determining the eligibility of disputes for the Federal IDR process is requiring significantly more review and processing by certified IDR entities than initially anticipated.” This has inevitably bogged down the IDR process, resulting in a growing backlog and delays in the resolution of payment disputes as more disputes continue to be filed. The Departments noted that they are continuing to automate the IDR portal to improve processing of disputes, but whether any such improvements will counteract the large volume of disputes being submitted remains to be seen.