As many of you know, the No Surprises Act establishes an Independent Dispute Resolution ("IDR") process for resolving payment disputes between providers and payors. Yesterday, the Center for Medicare and Medicaid Services ("CMS") held a comprehensive, hour-plus webinar to explain its new IDR portal, which finally went live about ten days ago. The webinar was well orchestrated, with a real-time walk-through of the portal, and a team of CMS staff actively working to answer questions in the Q&A chat.
While the webinar (and slides) will be made available on CMS' website soon, here are a few of the highlights that stood out to me.
The Shadow of the TMA lawsuit. The recent judgment in favor of providers in the Texas Medical Association lawsuit, which overturned the QPA rebuttable presumption in the IDR process (which DOJ announced a few days ago that it would appeal) loomed large over the webinar. CMS went out of its way to emphasize that the Qualifying Payment Amount (QPA - refresher here) was still one of the statutory factors to be considered by the arbiter. This is even though, under current CMS guidance, arbiters are no longer required to pick the offer closest to the QPA.) Likewise, CMS emphasized that the arbiter can only consider "credible" information - a related requirement that is imposed by regulation, not by statute, which was not overturned by the TMA judgment.
Defective EOBs from Payors. If a provider suspects the QPA is not correctly calculated – or if an Explanation of Benefits (EOB) form fails to include all required information about the QPA or instructions on how to initiate the IDR process – then providers are encouraged to notify the Departments and file a complaint on CMS' website here.
CMS was adamant that the payor must include an email address where the provider can contact a real person about initiation open negotiations and later IDR. The Open Negotiation Notice and the subsequent later Notice of IDR Initiation would be emailed to that address (and also submitted on the portal).
Open Negotiations. Completing the 30-business-day Open Negotiation period is a mandatory prerequisite before IDR. Providers need to be careful about filing and serving their Open Negotiation Notice to ensure it has all the statutorily required information, such as the date of service, billing codes, and the initial payment amount. See 45 C.F.R. 149.510(b)(2). CMS emphasized that if the Notice is defective, CMS may later determine that any subsequent decision by the Certified IDR Entity is defective and thus unenforceable.
Payors grumbled during the webinar that they may not be able to locate a claim based solely on the DOS, CPT codes, and payment amount. CMS did not seem to give much weight to that concern, however, as long as all the required information is provided in the Notice.
Factors That May Not Be Considered. The Act says an arbiter in IDR shall not consider reasonable and customary charges or public payor rates like Medicare or Medicaid. In the webinar, CMS staff further clarified that arbiters should also not consider payment rates that are stated as a percentage of U&C, or a percentage of public payor rates. This will have some interesting consequences, though payment rates can always be restated so that they don't refer to charges or to Medicare rates.
Not A One-Stop Shop. The webinar made clear that the CMS IDR portal, as currently implemented, is intended to be limited in scope. Most business in an IDR will actually be conducted over email – for example, the submission of each side’s offer to the Certified IDR Entity. The portal will host the official notices that each party is required to file and deliver to the other side, as well as a record of when the IDR was initiated and the final decision that was reached.
The portal also is not that sophisticated yet. For instance, one attendee asked whether logic had been built into the IDR portal so that once the date on which the 30-business-day Open Negotiations period began has been entered, a user is not allowed to initiate IDR unless they are within the 4 business-day period following the end of Open Negotiations. CMS said “no,” but that a future version would.
CMS also said there was no ability to delete or change information in an IDR initiation notice that you enter in error, but again, that a future version would let you do it.
Payor Portals? CMS left open the possibility that plans could create their own “portals” to handle open negotiations and other communications prior or incidental to the IDR process. CMS stated that there was no authority that would preclude a plan from doing so.
The rubber is finally about to hit the road. If you have any questions about how to best leverage the IDR process -- and other No Surprises Act rules and regulations -- for your provider organization, feel free to reach out to Eric Chan at eric@athenelaw.com.