An ongoing commentary from Healthlink Dimensions
First Released on Sept 30, 2021
Published on the Federal Register on Oct 7, 2021
Federal Register: Requirements Related to Surprise Billing; Part II
This interim final rule is already being contested by many provider organizations who disagree with the interpretation of the dispute resolution process. The critical issue is how much influence the Qualified Payment Amount (QPA) should have on the independent dispute arbitrator’s decision. This interim final rule provides details on the following three key provisions of the law:
Rules for the Independent Dispute Resolution (IDR) process (sections 103 and 105 of NSA)
Implications for FEP plans under the Federal Employees Health Benefits (FEHB) Act
Rules for good faith estimates for uninsured individuals and Selected Dispute Resolution (SDR) entities
Rules for IDR
Basic Process
Issuer either makes 1) Initial payment using QPA, or 2) denial of payment
Providers or plan/issuers then have 30 business days (~45 calendar days) to initiate an open negotiation period for QPA payments
Open negotiation lasts up to 30 business days (~45 calendar days) from date initiated by either party or until agreement reached on out-of-network rate
After the open negotiation period ends if no agreement reached, either party may initiate the Federal IDR process during the 4-business-day period beginning on the 31st business day after the start of the open negotiation period
Parties then jointly select a certified IDR entity within 3 business days of notification to initiate IDR. If parties cannot agree the Departments will select one for them within 6 business days of the IDR notice.
Each party must then submit an offer for payment amount within 10 business days of IDR selection and any other information for the IDR entity to consider.
Each entity must pay the IDR fee and administrative fees when they submit their offer. The prevailing party will receive their IDR fee back after their offer is selected.
After IDR entity selects out-of-network amount, any outstanding claim payment must be made within 30 business days
IDR entity process guidelines:
Must ascertain that the out-of-network rate for the service was not previously determined in an IDR process and within the window of the 90-calendar-day suspension period
Must choose one of the two offers within 30 business days of being selected and send notification to both parties. IDR cannot calculate a middle ground or different payment amount.
Must begin with the presumption that the QPA is the appropriate out-of-network rate for the qualified IDR item or service under consideration
Must select the offer closest to the QPA unless the certified IDR entity determines that credible information submitted by either party clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate give some examples and scenarios, has additional criteria for air ambulance)
May not consider usual and customary charges, the amount that would have been billed (including billed charges) had the NSA rules not applied, or any public payor payment or reimbursement rates such as Medicare, Medicaid, CHIP, or Tricare
FEP and Federal Benefits
All Federal Employee Plan (FEP) members and their claims will follow the same process as other commercial insurers. The No Surprises Act requirements will apply to FEP.
Good Faith Estimates for the Uninsured/Self-Pay
Patients for the first time on many services will be able to get a quote from their provider before undergoing a procedure. While the law intends this to be extended to insured members in the future, for now the rules only specify details for the uninsured.
Definition of uninsured or self-pay includes:
Individuals not enrolled in a group or individual insurance plan (uninsured)
Individuals and group members with insurance who do not seek to submit a claim with their insurer (self-pay)
Individuals in short-term limited duration plans
As part of Good Faith Estimate Requirements Providers must:
Check to see if the individual meets the criteria of uninsured/self-pay
Provide a good faith estimate either upon request or at the time of scheduling the item or service
Provide the notification with:
Clear and understandable language
The expected charges for furnishing the items or services listed on the good faith estimate
With the expected billing and diagnostic codes for any such items or services
Include any items or services that are reasonably expected to be provided in conjunction with such scheduled or requested items or services
And such items or services reasonably expected to be so provided by another health care provider or health care facility (i.e., anesthesia, lab work, imaging, surgeon fees, hospital fees)
Timeline for Good Faith Estimate notification for uninsured/self-pay:
Patient-Provider Selected Dispute Resolution (SDR) Process:
An uninsured (or self-pay) individual who received from a provider or facility a good faith estimate of the expected charges, and who, after being furnished the item or service, is billed an amount that is substantially in excess of the expected charges in the good faith estimate, may seek a determination from a certified selected dispute resolution entity of the amount to be paid to the provider or facility. The federal government provides a process and details for patients to dispute their bills compared to the good faith estimates.
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