It has been nearly four years since the No Surprises Act (NSA) was enacted to protect patients from surprise medical bills, including those from emergency department visits. However, many of its rules and processes remain challenging for healthcare providers, particularly concerning the independent dispute resolution (IDR) process.
The IDR process is intended to resolve payment disputes between providers (including facilities) and payers when one party challenges the reimbursement amount for out-of-network (OON) care rendered to a patient. Through the IDR process, payers and providers can negotiate for appropriate reimbursement or take the dispute to an independent arbiter, known as an IDR entity, to determine a fair payment.
Policymakers designed the IDR process to be a balanced, objective, and efficient mechanism for resolving OON payment disputes under the NSA, thereby protecting patients from unexpected medical bills and keeping them out of the payment dispute process. However, many providers have found the IDR process and other aspects of NSA rollout anything but balanced and efficient.
Over two dozen lawsuits have been filed to date, challenging aspects of the NSA rollout. Notably, the Texas Medical Association (TMA) has filed four suits, mainly challenging the IDR rules and payment determination criteria. The courts have also largely agreed with TMA’s arguments, prompting several changes from the federal government. But these changes have only led to further confusion and payment delays.
The lawsuits, decisions and resulting changes to NSA
- TMA et al. v. HHS et al. (TMA I): Filed in October 2021, this lawsuit argued that an interim final rule gave too much weight to the qualifying payment amount (QPA) despite nothing in the NSA stating that arbiters should give added weight to any one factor in their final payment decision. A federal judge ruled in favor of TMA in February 2023, and the Departments agreed to revise its language in their final rule.
- TMA et al. v. HHS et al. (TMA II): Filed in September 2022 in response to the Department’s final rule, this lawsuit argued that the final rule still gave disproportionate weight to the QPA by asking arbiters to consider the QPA first or explain their rationale for considering other factors outside of the QPA. A federal judge ruled in favor of TMA in February 2023, ordering all IDR entities to pause payment determinations through March 2023, until new guidance became available. HHS filed an appeal in this case, but the appellate court also sided with TMA in August of 2024 and notably vacated HHS’ revised regulations across the board. Next steps are still unclear, but new guidance is expected soon.
- TMA et al. v. HHS et al. (TMA III>): Filed in November 2022, this lawsuit argued that four specific aspects of the QPA calculation allowed payers to artificially deflate values: (1) the inclusion of “ghost rates”; (2) the exclusion of risk-sharing, bonus, and other incentive-based or retrospective payments; (3) the inclusion of out-of-specialty rates; and (4) the inclusion of other plan sponsors’ rates. A federal judge sided with TMA in August 2023 and the Departments subsequently filed an appeal. The Departments, however, did not challenge the district court’s vacatur of the third and fourth provisions, other than to appeal the district court’s decision to order a “universal vacatur.” This now leaves ghost rates and incentive payments at issue in this appeal.
“It’s important to note that the Departments are only appealing a portion of this ruling,” explains Dr. Andrea Brault, President and CEO of Brault Practice Solutions. “This can be an important factor to bring up in IDR briefings, as one can argue that the entire QPA calculation should be invalid as a result of this ruling.” - TMA et al. v. HHS et al. (TMA IV): Filed in January 2023, this lawsuit challenged the increase in IDR administrative fees from $50 to $350, arguing that it would make the process cost-prohibitive for some providers. In August 2023, a federal judge ruled in favor of TMA, vacating the fee increase and parts of the batching requirements due to a violation of rulemaking procedures. In December 2023, the Departments issued revised rules for IDR fees with the proper 30-day notice-and-comment period. The new fee structure now includes an Administrative Fee of $115 per party per dispute and IDR entity fees of $200-$1,173 depending on the type of dispute and whether it’s a single or batched claim.
The guidance, revised rules, and delays have added to the chaotic implementation of the law. And, for EM groups in particular, the rollout has contributed to significant payment reductions and delays – making it difficult for some groups to meet payroll or keep operations running smoothly.
Other issues beyond lawsuits have also emerged
These multiple changes have added more complexity to the IDR process, and its shaky infrastructure seems to be struggling to keep up. For example, there were 288,000 new IDR cases in the first half of 2023, already putting the caseload above the 200,000 cases in all of 2022. Both of those numbers were also well above the government’s initial estimate of 17,000 cases annually.
This overwhelming volume and added complexity have resulted in a growing backlog of IDR cases. According to new data from the Emergency Department Practice Management Association (EDPMA), only 7.6% of respondents have successfully completed the IDR process with the average age of disputes currently at 211 days (7 months). The EDPMA data also found that when IDR payment determinations were made, payers failed to pay (or paid the incorrect amount) in 24% of cases.
Unsurprisingly, this has led many EM providers to not engage in the IDR process. Only about one-third of eligible OON claims were submitted through the process, despite evidence showing a high success rate for providers who do complete IDR.
Revenue challenges faced by emergency medicine providers are also evident in the EDPMA data. In 2023, EM groups experienced a 39% reduction in net collections per visit for OON claims (compared to 2022).
“We’re seeing a combination of insurance payers paying unreasonably low amounts, inefficient and complex processes, and the government’s inability to enforce its own rules,” explains Dr. Brault.
EDPMA data also shows a widespread shift among insurance payers following the NSA, with members reporting significant rate cuts and even contract terminations.
What can EM providers do to safeguard revenue, access to care
Despite these challenges, EM providers should still participate in the IDR process as rules and regulations evolve, suggests Dr. Brault.
“Strategize with your RCM company and look for ways to develop and scale your IDR processes, as we are winning about 75% of these cases,” says Dr. Brault. “While it may seem slow and cumbersome at first, it is currently the only tool available (aside from litigation) that can help us gain back some of that lost revenue.”
EM provider groups should look for ways to batch their claims for added efficiency and to determine whether potential IDR claims are being overlooked. “Get past the initial hurdle, refine the process, and make it an ongoing effort.”
Dr. Brault suggests starting simple by scheduling regular meetings with your billing company to discuss recent IDR filings and learnings that can be applied toward future cases.
“For now, all we can do is work within the current construct of the NSA and expect more changes ahead,” explains Brault. “Yet, despite the chaos, we are starting to gain some traction with Congress and other experts asking questions about the fairness of this rollout.”
Advocacy continues to play a big part in changing the direction of the NSA rollout, and lawmakers are very interested in how the NSA is impacting their constituents.
“Now is the time to make our voices heard,” explains Dr. Brault. “Work with your professional organizations and join in their advocacy efforts to educate legislators on how this is impacting your practice and jeopardizing patient access to quality care.”
