The Federal government updated its guidance for the independent dispute resolution (IDR) process under the No Surprises Act and instructed IDR entities to resume issuing payment determinations for applicable out-of-network items or services furnished on or after Oct. 25, 2022, effective March 17. The U.S. District Court for the Eastern District of Texas issued an opinion and order Feb. 6 in Texas Medical Association, et al. v. United States Department of Health and Human Services (TMA II) vacating certain portions of the August final rules governing the IDR process. The vacated rules instructed IDR entities to consider the qualifying payment amount (QPA), or median contracted rate, the primary factor when determining appropriate out-of-network provider reimbursement rates. The American College of Radiology® (ACR®) supported the TMA’s lawsuit by filing an amicus brief in October.
The new guidance issued March 17 instructs IDR entities to consider both the QPA and additional information relating to the offers submitted by the parties. Additional information that may be considered includes the level of training, experience and quality outcomes measurements of the provider or facility that furnished the item or service, the market share held by the provider or facility, the acuity of the patient receiving the item or service, the teaching status, case mix and scope of services of the facility, and demonstration of good faith efforts made by the provider or facility, or the plan to enter into network agreements with each other. The new guidelines also instruct the certified IDR entities to provide an explanation of the rationale for its decision, including what information was used to select the offer that best represents the value of the qualified IDR item or service. The weight given to the QPA and any additional information submitted must be provided as part of the explanation.
Following the TMA II decision, the government instructed certified IDR entities to hold all payment determinations pending the issuance of further guidance. On Feb. 27, certified IDR entities were instructed to resume making payment determinations for payment disputes involving items or services furnished before Oct. 25, since those determinations were not affected by the opinion and order in TMA II. In a joint letter sent to the Centers for Medicare and Medicaid Services (CMS) Feb. 28 by the ACR, American Society of Anesthesiologists and the American College of Emergency Physicians, the organizations urged the expedited resumption of all IDR payment determinations, including those for items or services furnished on or after Oct. 25. The letter stated that delays in payment determinations were exacerbating the existing IDR backlogs and harming members’ practices by holding up payments for services provided to patients.
TMA has filed two additional lawsuits addressing the QPA calculation methodology and the 600% administrative fee increase for the IDR process that CMS announced in December. The College filed an amicus brief on the QPA lawsuit in late January and the administrative fee increase lawsuit in February.
For more information, contact Katie Keysor, ACR Senior Director, Economic Policy.