Out Of Network Anesthesia Services: Payment Dispute Process Begins

Summary: The federal government has recently opened up the independent dispute resolution process for out-of-network providers who are unhappy with their reimbursement for services. Specific instructions are provided in this alert for beginning this process.

Such crises don't often occur; but, when they do, it's good to have a workable resolution to a seemingly insoluble problem. From a healthcare perspective, many have seen the newly implemented No Surprises Act (NSA) as a crisis from a reimbursement perspective. As you will recall, the NSA effectively bans balance billing by out-of-network (OON) providers in participating facilities. The act was generally viewed by providers as being fair and just—at least in its legislative form—but subsequent rulemaking by the Centers for Medicare and Medicaid Services (CMS) created a concern among the provider community that insurance companies were being favored in the adjudication of these non-par claims. Thankfully, there have been recent actions before the courts that have resulted in the beginning phases of a workable solution.

While we are waiting for the ultimate outcome of these legal and regulatory actions, we have a new announcement by the government concerning a key part of the NSA's provision: the independent dispute resolution (IDR) process.

Open for Business

Last week, CMS opened the IDR process for healthcare providers—which includes anesthesiologists—to resolve payment disputes for certain OON charges. As you'll recall, after the end of a 30-business-day period of open negotiations, during which all parties in good faith try to reach an OON payment agreement, a provider can use the online portal to initiate the federal IDR process. That portal is now open. To start a dispute, an initiating party will need the following:

✳️ Information to identify the qualified IDR items or services;

At the end of the 30-business-day open negotiation period, initiating parties have four business days to initiate a dispute via the portal. As a result of the recent decision in Texas Medical Association, et al. v HHS, the government will give disputing parties whose open negotiation period expired before April 15, 2022, 15 business days to file an initiation notice via the IDR portal.

Toward a Resolution

The CMS announcement advises that, even after initiation of the IDR process, disputing parties can continue to negotiate until the IDR entity makes a determination. If the parties reach an agreement on the OON payment rate, they should: (a) email the certified IDR entity and the government (at FederalIDRQuestions@cms.hhs.gov) and, (b) attach to the email a document that contains the following:

1. The agreed-upon OON rate for the qualified IDR item, batched determinations, or service (that is, the total payment amount, including both participant, beneficiary, or enrollee cost-sharing and the total plan or coverage payment, including amounts already paid)

2. Allocation of how parties agree to pay the certified IDR entity fee (if parties choose not to evenly split the fee);

3. Signatures from authorized signatories for both the initiating and the non-initiating party.

This information must be submitted within three business days of the agreement. According to CMS, if the disputing parties experience extenuating circumstances during the IDR process that prohibit them from complying with deadlines to submit information, they may email the government (at FederalIDRQuestions@cms.hhs.gov) to receive a Request for Extension Due to Extenuating Circumstances form and instructions for next steps.

You can learn more about the Independent Dispute Resolution process by going to the following website: www.cms.gov/nosurprises. CMS has also provided the following additional resources relative to the NSA and its IDR provisions:

✳️ Revised Certified IDR Entities Guidance and revised IDR Disputing Parties Guidance, which provide updates to conform with the recent Texas Medical Ass'n, et al. v United States Department of Health and Human Services, et al. decision and provide further direction to certified IDR entities and disputing parties about the Federal IDR process.

✳️ Chart for Determining the Applicability for the Federal Independent Dispute Resolution (IDR) Process, which provides a high-level summary to assist in determining whether the federal IDR process or a state law or All-Payer Model Agreement applies for determining out-of-network rates.

Not every dispute has a happy ending. However, when there is a disagreement over the level of compensation relative to OON claims, there is a step-by-step process in place that providers can follow that will hopefully lead to a just and equitable resolution. If you have further questions about the IDR process, please contact your account executive or reach out to us at info@anesthesiallc.com.