The Independent Dispute Resolution Process: A Fresh Look for Anesthesia
Summary: The No Surprises Act saga continues to slowly unfold as regulations, court opinions and notifications drip out on an intermittent basis. Today's alert provides an update on the situation and what the anesthesia community may expect in the future.
The No Surprises Act (NSA) was designed to remove the unexpected costs of out-of-network (OON) providers as a barrier to patient care. The legislation placed limits on provider collection efforts that largely favored insurers. The Independent Dispute Resolution (IDR) process was included as a check and balance on the advantages afforded to insurance companies. The IDR, however, has been plagued by a number of issues.
A Bit of Background
CMS' second Interim Final Rule relating to the NSA (released only 3 months before its effective date) was our first look at the IDR. Of concern to many providers was the greater weight given to the Qualifying Payment Amount (QPA) in determining the outcome of disputes. The QPA is calculated by the payer as the median contracted amount for the service in question within a given geographical area. The initial structure, timelines and this guidance led many providers to question whether the IDR could serve its purpose as an arbiter of fair pricing. Providers complained that this would simply incentivize insurers to lower their rates for in-network services.
There is ample evidence that this is the case. Letters demanding lower rates from BlueCross BlueShield of North Carolina were mailed even prior to the implementation of the No Surprises Act. BlueCross BlueShield of Tennessee also recently published a letter explicitly stating their intent to deliver $65 million in annual savings at the expense of its hospital-based providers, including anesthesiologists. The ASA and three other national physician organizations commissioned a study by Avalere Health that suggests that insurers may be including primary care provider contracted rates, resulting in insurer-calculated QPAs that do not represent typical payments for these services. In spite of these advantages, premiums nationwide have continued to rise.
Current Status
As of early June 2022, at least eight lawsuits had been filed opposing certain regulations arising from the No Surprises Act. In an action brought by the Texas Medical Association, the judge overturned the CMS arbitration process for determining payment for services by OON providers, stating that the regulations conflict with the text of the NSA. In essence, the judge ruled against the Sept. 30, 2021 rule that directed arbiters under the IDR process to presume that the median in-network rate is the appropriate out-of-network rate. The outcome of other cases is awaiting publication of a revised Final Rule, promised this summer. Questions have continued regarding influence of the QPA in the adjudication of the disputes.
The IDR portal did not permit submissions until April 15, 2022. The timelines required are very demanding, and the process is onerous and relatively expensive. In spite of the difficulty, some diligent providers chose to move forward and flesh out the IDR to defend their reimbursement. Those claims have been met with significant delays in processing. There are currently only 11 certified independent dispute resolution entities listed on the CMS website. Three of those entities indicate they are not accepting new disputes at this time. The utility of the IDR as a tool to ensure fair reimbursement remains clouded.
Looking Forward
Further clarification, however, may be on the horizon. On August 17, 2022, the U.S. Departments of Health and Human Services (HHS) released technical assistance (TA) for certified Independent Dispute Resolution (IDR) entities on various aspects of the Federal IDR process, which can be found here. This document provides more in-depth direction to certified IDR entities regarding eligibility for the federal IDR Process, batching services, and communication standards. It specifically addresses anesthesia, clarifying that services furnished within a 30-business day period and having the same anesthesia CPT code may be batched for IDR review if they also meet the timeline for submission.
Recall that there is a four-day window to initiate a dispute, following the 30-business day open negotiation period. Initiating parties can also now upload supplemental documents at initiation relevant to their dispute. The applicable federal departments believe this additional functionality may prevent delays in processing disputes and can potentially expedite the process. Further guidance may be developed in the future to address specific questions or scenarios submitted by certified IDR entities.
In addition, the promised revised Final Rule (minus the Interim tag) was released Friday, August 19th. We look forward to exploring the impact of this final rule on the IDR, the No Surprises Act and the specialty of anesthesia. If you have questions for us, you can contact your account executive or go to info@anesthesiallc.com.