On August 3, 2023, a Texas district court vacated certain provisions under the Departments' surprise billing implementing regulations, including batching rules addressing when multiple items or services could be considered together in one IDR proceeding (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). Specifically, the court vacated a rule under which NSA-covered items and services—in order to be batched together—had to be the "same or similar items and services" (among other requirements). Later that month, the court vacated portions of the Departments' technical guidance for IDR arbitrators under which the service codes for a single air ambulance transport could not be batched in a single IDR dispute.

In response to the Texas district court rulings, the Departments' FAQs address how the batching requirements apply to NSA-covered items and services for disputes initiated under the IDR process on or after August 3, 2023 (that is, the date of the first relevant Texas court ruling). Under the FAQs, whether items and services can be batched together depends on the applicable NSA statutory terms and remaining (non-vacated) regulations. Under the NSA, items and services can be considered together in one determination only if they are "related to the treatment of a similar condition." Subject to future rulemaking, disputes that are eligible to be initiated under the federal IDR process on or after August 3, 2023, should be submitted in a manner that is consistent with the NSA and regulations remaining in effect after the Texas court vacaturs.

IDR arbitrators are solely responsible for determining whether items and services submitted as part of a batched dispute meet the batching standards under the NSA and remaining regulations.

The FAQs also address whether disputes for air ambulance services for a single air ambulance transport that are initiated on or after August 3, 2023, can be submitted as a batched dispute. In light of the Texas court's August 3, 2023, ruling, air ambulance services for a single air ambulance transport—including air ambulance mileage and base rate codes—may be submitted as a batched dispute, if all provisions of the batching regulations are satisfied. The FAQs and the Texas court's August 3, 2023, ruling do not prevent air ambulance mileage or base rate codes from being submitted separately as a single dispute.

Relatedly, CMS issued FAQs about batching and air ambulance services (FAQ guidance (Nov. 28, 2023)). CMS's FAQs address:

Under CMS's FAQs, for example, once the federal IDR portal reopens for batched disputes, IDR arbitrators should resume processing payment determinations for batched disputes. This will include batched disputes involving air ambulance services that were:

These disputes may not be amended and resubmitted to the IDR process for consideration with other NSA-covered items and services. According to CMS, the Texas district court orders did not require IDR arbitrators to reconsider disputes that were determined to be correctly batched under the regulations in effect before August 3, 2023.

Among other topics, the FAQs address:

Specifically, the 2023 CLAS county data includes an updated list of all counties (including counties in US territories) for which ten percent or more of the population is literate only in the same non-English language. The updated list:

The 2023 CLAS county data also includes sample taglines describing how to access language services provided by the plan or insurer in those languages that satisfy the ten percent threshold.

Non-grandfathered plans and insurers must provide claims and appeals notices—and SBCs—consistent with the 2023 CLAS county data effective for plan years beginning on or after January 1, 2025. The 2023 CLAS county data will apply until the next version of the guidance is issued and effective.