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Departments Partially Reopen Surprise Billing IDR Portal and Temporarily Extend Certain IDR Deadlines
Practical Law Legal Update w-040-9799 (Approx. 5 pages)
Departments Partially Reopen Surprise Billing IDR Portal and Temporarily Extend Certain IDR Deadlines
by Practical Law Employee Benefits & Executive Compensation
| Published on 10 Oct 2023 • USA (National/Federal) |
The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury (collectively, Departments) have partially reopened the federal independent dispute resolution (IDR) portal for operations under the No Surprises Act (NSA). The Departments suspended federal IDR process operations in August 2023 after two district court decisions that vacated portions of the NSA's regulations implementing and related guidance. Besides reopening the IDR process (in part), the Departments also temporarily extended certain deadlines involving the IDR process.
Beginning in August 2023, the Departments suspended operations involving the independent dispute resolution (IDR) process under the No Surprises Act's (NSA's) surprise billing rules in response to Texas district court rulings that invalided certain NSA implementing regulations and related guidance. Under guidance issued on October 6, 2023, however, the Departments have partially reopened the federal IDR process for many claims (FAQ guidance (Oct. 6, 2023)). In doing so, the Departments also temporarily extended certain IDR-related timing rules to account for the closure period.
For more information on the NSA and IDR process, including litigation challenging the Departments' regulations, see:
Texas Litigation Led to IDR Process Closures
On August 3, 2023, as background, a Texas district court vacated portions of the Departments' IDR regulations governing the batching of items or services for payment determinations and related guidance concerning fees (Tex. Med. Ass'n v. HHS, (E.D. Tex. Aug. 3, 2023); see Legal Update, Texas District Court Vacates Surprise Billing Rules on Application Fees and Batched Items). This included vacatur of the $350/party administrative fee under the Departments' IDR guidance (see Legal Update, Surprise Billing Regulations Would Set IDR Administrative Fees and IDR Arbitrator Fee Ranges).
After the district court's decision, the Departments temporarily suspended all federal IDR process operations to make changes necessary to comply with the court's ruling. On August 8, 2023, IDR arbitrators resumed processing batched disputes if an arbitrator concluded that the batched dispute was eligible and administrative fees had been paid (or the deadline for collecting fees expired) before August 3, 2023.
Later in August 2023, the Texas district court vacated:
- Regulatory provisions governing the method for calculating qualifying payment amounts (QPAs) under the IDR process.
- Batching guidance that required two separate arbitration proceedings to adjudicate a single air ambulance transport.
Under the Departments' batching guidance for air ambulance transports—which the court's order vacated—the two service codes for a single air ambulance transport (that is, a base rate and a per mileage code) could not be reviewed together in a single IDR dispute.
The Departments suspended all federal IDR operations in light of the court's August 24 ruling.
In September 2023, the Departments instructed IDR arbitrators to once again process single disputes (including those involving bundled payment arrangements) that were submitted on or before August 3, 2023.
Partial Reopening of Federal IDR Portal
In their October 6 guidance, the Departments announced that they are reopening the federal IDR portal as of October 6, 2023, for new single and bundled disputes. The portal's reopening for these functions reflects the Departments' completion of related guidance and system updates involving the IDR process administrative fee and QPA calculations.
However, new disputes involving air ambulance services—in addition to batched disputes for air ambulance and non-air ambulance items and services—will temporarily continue to be unavailable. The IDR process is also unavailable as to previously initiated batched disputes. These operations will remain suspended while the Departments prepare additional guidance and system upgrades consistent with the Texas district court's August 3 ruling.
Deadline Extensions for Parties Affected by Temporary Portal Suspension
The Departments' guidance provides certain deadline extensions for parties affected by the temporary suspension of the federal IDR process operations.
Deadline for Initiating IDR Disputes
The deadline for initiating a dispute through the IDR process is typically four business days after the end of the open negotiation period (see Practice Note, Surprise Medical Billing for Group Health Plans: Independent Dispute Resolution (IDR) Process (Part II): Selecting IDR Arbitrators). Under the Departments' guidance, if this deadline falls between August 3, 2023, and November 3, 2023—regarding single disputes, including those involving bundled service arrangements—the parties have until November 3, 2023, to initiate the dispute. (November 3 is 20 business days after the IDR portal's October 6 reopening date.)
Deadlines for Selecting IDR Arbitrators
Parties generally have up to three business days after initiating the IDR process to jointly agree on an IDR arbitrator. The Departments' guidance provided the following deadline extensions for selecting IDR arbitrators:
- For parties that were in the process of selecting an arbitrator when the IDR portal was suspended in early August 2023, the deadline for selecting an arbitrator is October 20, 2023 (that is, ten business days after the October 6 reopening).
- For disputes initiated between October 6, 2023, and November 3, 2023, the deadline for selecting an arbitrator is ten business days after initiation.
- For disputes initiated after November 3, 2023, the regular three-business-day deadline applies.
Deadlines for Submitting Offers and Paying IDR Arbitrator Fees
Within ten days of the date an IDR arbitrator is chosen, the plan/insurer and provider must each submit to the IDR arbitrator:
- A payment offer amount for the item or service furnished by the provider or facility.
- The IDR arbitrator fee and administrative fee.
According to the Departments, the federal IDR portal can be used to submit an offer and pay fees as of October 6, 2023. As a result, the regular ten-business-day deadline applies for single disputes that are initiated on or after October 6, 2023.
Parties that were affected by the temporary inability to submit an offer through the federal IDR portal are directed to the email they received from the Federal IDR Inbox regarding their deadlines for submitting an offer and paying fees. Importantly, a party's deadline to submit an offer may differ from the deadline to pay administrative and IDR arbitrator fees (see Practice Note, Surprise Medical Billing for Group Health Plans: Independent Dispute Resolution (IDR) Process (Part II): Costs of IDR Process; Administrative Fee Litigation (Aug. 2023)).
Practical Impact
Despite the temporary deadline extensions, payment of fees and submission of offers will continue to be due ten business days after an IDR arbitrator is selected (see Practice Note, Surprise Medical Billing for Group Health Plans: Independent Dispute Resolution (IDR) Process (Part II): Submitting Offers).
The Departments also indicated that they are presently updating the federal IDR portal and relevant guidance to comply with the Texas district court's vacatur concerning batched disputes and air ambulance disputes. After the necessary changes are made, the Departments will reopen the federal IDR portal for new batched disputes and air ambulance disputes.