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No Surprises Act Independent Dispute Resolution Process Resumes

by | Mar 28, 2023 | News, Open Content

HHS orders arbitrators to go back to resolving payment disputes between providers and payors under the No Surprises Act.

The U.S. Department of Health and Human Services (HHS) has ordered arbitrators to go back to resolving payment disputes between providers and payors under the No Surprises Act. The government had put the independent dispute resolution (IDR) process on temporary hold after a Texas federal court found that the rules put in place to settle disputes were unfairly weighted in favor of payors.

The controversy stems from the part of the regulation that instructs arbitrators to consider the “qualifying payment amount” (QPA) established by payors as the primary factor in determining the reasonable price for a disputed item or service. In cases brought by the Texas Medical Association, a federal judge has twice ruled that using the QPA as the prime factor violates the act by unfairly favoring payors in the IDR process.

In response, HHS and the U.S. Departments of Treasury and Labor have revised the regulations once more. The new rules leave the QPA as a factor but also require IDR arbitrators to give equal weight to the other factors listed in the revised regulations, including:

  • Level of training, experience, and quality and outcomes measurements of the provider that furnished the qualified IDR item or service (“service”);
  • Market share of the provider or plan in the geographic region the service was provided;
  • Acuity of the patient receiving the service, or complexity of furnishing the service;
  • Teaching status, case mix, and scope of services of the facility that furnished the service; and
  • Demonstration of good faith efforts (or lack thereof) made by the parties; and
  • Contracted rates, if any between the parties during the previous four plan years.

Whether these new rules will satisfy providers remains to be seen.