HHS Chart Summarizes Applicability of State and Other Surprise Billing IDR Processes

HHS has provided a variety of resources relating to the surprise medical billing protections of the No Surprises Act (enacted as part of the Consolidated Appropriations Act, 2021 (CAA)), including a chart summarizing when a state or other independent dispute resolution (IDR) process applies rather than the federal process. As background, the surprise medical billing protections are intended to shield individuals from surprise bills for emergency services, air ambulance services furnished by nonparticipating providers (i.e., out-of-network providers or other providers that do not have contractual relationships with the plan), and, in certain circumstances, non-emergency services furnished by nonparticipating providers at in-network facilities (see our Checkpoint article). Interim final regulations address, among other things, how to determine the amount payable for items or services covered by the surprise billing protections, including use of the IDR process if the parties cannot reach agreement during open negotiation (see our Checkpoint article).

An overview provided with the chart explains that the federal IDR process does not apply to items and services covered by Medicaid, Medicare, CHIP, or TRICARE, or if a method for determining the amount payable is provided under state law or an All-Payer Model Agreement (under the Social Security Act). The chart is intended to assist parties in determining which process applies for determining the payment amount for a covered item or service—the federal IDR process or a state law or All-Payer Model Agreement. The federal IDR process applies in most states and all U.S. territories. The state process applies in four states (Alaska, Georgia, Maine, and Michigan). In 18 states, a “bifurcated” process applies; parties in those states are instructed to review state law and consult with state authorities to determine which process applies.

EBIA Comment: HHS has issued a “CAA Enforcement” letter to each state and territory addressing whether the federal IDR process applies in the state and in what circumstances; a posted list provides links to each letter. Plans and insurers in states with a bifurcated process may find this a helpful starting place in determining which process applies to a particular dispute. For more information, see EBIA’s Health Care Reform manual at Section XII.B.3 (“Surprise Medical Billing: Emergency and Non-Emergency Services”). See also EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C (“Federally Mandated Benefits”).

Contributing Editors: EBIA Staff.