Agencies Revise Surprise Billing IDR Process Guidance After Final Regulations Vacated

The DOL, HHS, and IRS have issued revised guidance implementing the independent dispute resolution (IDR) process used by plans, insurers, providers, and certified IDR entities in resolving claims for payment for out-of-network services under the surprise medical billing rules (see our Checkpoint Question of the Week). The process guidance documents have been reissued to reflect a recent court decision that vacated final regulations addressing the factors that certified IDR entities may consider in selecting a party’s payment amount (see our Checkpoint article). The revisions primarily reflect the court’s determination that the final regulations unlawfully tilted the IDR negotiation process in favor of the qualifying payment amount (QPA) by requiring certified IDR entities to consider the QPA before considering non-QPA factors and limiting the circumstances under which non-QPA factors may be considered. For example, the process guidance documents no longer advise that non-QPA factors may be considered only if the additional information is credible, relates to a party’s offer, and is not already reflected in the QPA.

The updated guidance documents are effective for payment determinations made on or after February 6, 2023, and apply to items and services furnished by an out-of-network provider on or after October 25, 2022, for plan or policy years beginning on or after January 1, 2022. Previous guidance documents that were updated in October 2022 remain in effect and apply to payment determinations made before February 6, 2023, for items and services furnished by an out-of-network provider on or after October 25, 2022 (see our Checkpoint article). These documents, along with earlier versions that apply to other periods, are available on the HHS website.

EBIA Comment: The revised IDR guidance should help get payment determinations moving again. HHS already instructed certified IDR entities to resume processing payment determinations for disputes involving items or services furnished before October 25, 2022, since these items and services were not affected by the court order (see our Checkpoint article). But payment determinations involving items or services furnished on or after October 25 have been on hold pending further guidance from the agencies. For more information, see EBIA’s Health Care Reform manual at Sections XII.B.3 (“Surprise Medical Billing: Emergency and Non-Emergency Services”) and XII.B.4 (“Surprise Air Ambulance Billing”) and EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C (“Federally Mandated Benefits”).

Contributing Editors: EBIA Staff.