Federal Agencies Issue Proposed Rule on Costs of Dispute Resolution for Out-of-Network Services
On September 20th, the U.S. Departments of Health and Human Services, Labor, and Treasury ("the Departments") issued a proposed rule setting forth an updated fee methodology and new fee rates, established by the No Surprises Act, for participation in the Federal Independent Dispute Resolution (IDR) process for certain IDR-eligible services that are provided to commercially-insured patients when the provider is out-of-network.
The proposed rule is in response to recent court rulings that invalidated a previous new fee issuance due to failure of the Departments to comply with the Administrative Procedure Act's notice-and-comment rulemaking requirements.
While surprise billing has generated a lot of press coverage, issues related to Federal IDR will have limited applicability to electrophysiologists at this time. First, eligibility for Federal IDR is only for either (a) emergency services; or (b) non-emergency services provided by an out-of-network provider at an in-network facility. Second, for those non-emergency services to which Federal IDR might be applicable, the No Surprises Act allows providers to offer notice to patients of their ability to waive the protections of the No Surprises Act, and if the patient consents, the Federal IDR process would be inapplicable to that service.
HRS members should, however, continue to be aware that the No Surprises Act includes a broader requirement to provide good faith estimates (GFEs) to uninsured or self-pay patients. In addition, the No Surprises Act requires that the Departments issue regulations that will create an obligation of providers to provide all commercially-insured patients with a GFE for scheduled services (so that health plans can give patients an advanced explanation of benefits (Advanced EOB) prior to the service being delivered). While these regulations have yet to be issued, HRS will continue to monitor agency activity and alert HRS members to any new requirements and weigh in with the Departments on behalf of HRS members as needed. HRS expects the proposed regulations to come out as early as the first quarter of 2024.