In an effort to bridge the gap between providers and plans, the Departments of Health and Human Services, Labor, and the Treasury issued a proposed rule on the No Surprises Act’s Independent Dispute Resolution process last October. The rule addresses various concerns highlighted in the Texas Medical Association decisions, encompassing bundling and batching criteria among others. Nevertheless, the rule raises concerns on enforcement and if the Centers for Medicare and Medicaid Services is doing enough to level the playing field in the IDR process.
The proposed rule brings about multiple changes, simplifying the standard regarding which items may be batched in a single dispute. If enacted, parties will be permitted to submit up to 25 eligible IDR items for batching into a single dispute, provided they meet the set criteria. Although this is a commendable move towards removing financial and administrative barriers, it falls short in accommodating single-patient encounters where the patient received more than 25 items and services.
For bundled payment arrangements, the proposed rule now permits qualified IDR items and services deemed as a “bundled payment arrangement” to be treated as one payment decision. But it allows the plans to have the final say whether to make the first payment under a single service code. This setup may prove problematic on the provider side.
The proposed rule also calls for plans to use the Claim Adjustment Reason Codes (CARC) and Remittance Advice Remark Codes (RARCs) on the Explanation of Benefits/Payment. These codes will help providers understand when the federal IDR process applies. Additionally, the rule mandates the disclosure of the legal business name of the plan or issuer, potentially reducing administrative burden. Despite its benefits, the proposal falls short in establishing robust enforcement mechanisms to guarantee compliance.
In terms of open negotiation, the proposed rule necessitates responses within 15 business days. However, like other sections, it lacks enforcement provisions or penalties for non-compliance. Plans consistently fail to participate in good faith during the negotiation period, and contrary to expectations, this new rule falls short of imposing strict compliance measures.
In spite of some needed revisions, the proposed rule signifies progress in the departments’ operations. Yet, strict enforcement guidelines on plans is a glaring omission. Providers find themselves on the short end of the stick, and while the new regulations might help level the playing field to some extent, progress still needs to be made.
The article was written by Rebecca Falk, an associate attorney representing provider-side health-care clients, and Andrea Greenblatt, an associate attorney and a member of the firm’s healthcare transactional team at Wolfe Pincavage.