Three federal agencies – the U.S. Department of Labor (DOL), the U.S. Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS) – recently issued FAQs (Part 62) on the “qualified payment amount” (QPA) under the No Surprises Act. The agencies also published guidance on the phased reopening of the independent dispute resolution (IDR) portal.
FAQs on Surprise Billing QPA
The issues in these FAQs arose from the court’s invalidation of the QPA calculation in Texas Medical Association v. HHS (TMA III). That court vacated certain QPA calculation portions of the agency’s joint interim rule, including provisions specific to air ambulance providers, fee increases for participation in the IDR process, and a rule making it more difficult to resolve related claims in a single proceeding.
In response to TMA III, these FAQS state that plans and insurers are to use a good-faith reasonable interpretation of the No Surprises Act and the rules that remain in effect following the court decision to calculate QPAs. Due to the uncertainty concerning QPA calculations, the agencies will exercise discretion in enforcement concerning IDR disputes in which parties calculated QPAs according to the interim rules in effect before the TMA III decision. This discretion will extend to items and services furnished before May 1, 2024, and will apply to all aspects of the federal IDR process.
However, plans and insurers should make QPA disclosures to nonparticipating providers, facilities, and air ambulance providers. Plans and insurers should also disclose that they utilized pre-TMA III rules in their QPA calculations if requested. Certified IDR entities can consider the post-TMA III QPA standard, as well as any other permissible factors, in determining which party’s offer best represents the value of the qualified IDR item or service as the out-of-network rate.
Plans and insurers must continue to make coverage determinations and either pay or deny air ambulance services no later than 30 days after receiving a bill from a nonparticipating provider. Furthermore, TMA III does not affect the No Surprises Act’s ban on balance billing by nonparticipant air ambulance providers.
Finally, the FAQs indicate that the federal government will file an appeal of TMA III. As a result, the agencies intend to issue no further interim guidance on these issues.
Guidance on Phased Reopening of IDR Portal
In their joint guidance, the three federal agencies reported that they had reopened the IDR portal as of October 6, 2023, at least in part. Currently, the portal is open to initiate certain new single disputes, including those involving bundled payment arrangements. Initiation and processing of batched disputes remain suspended. Initiation of air ambulance disputes also remains suspended. Parties to all suspended types of disputes will receive extended deadlines for initiating disputes and selecting certified IDR entities. However, parties will still owe fees and be required to submit offers within ten days of selecting certified IDR entities. The agencies also stated that they will post all updates to the changing functionality of the IDR portal to the CMS website and will work quickly to bring systems into compliance with TMA III.
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