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ASA maintains an ever-growing repository of Surprise Billing Resources on our website. As we expand these resources to help you understand and prepare to implement any new requirements, we want to hear from you. Your input will help us create resources that address your needs. Send us your surprise billing questions at [email protected].
Disclaimer: Responses provided here are for informational purposes only and do not constitute advice or imply approval of any practices. Responses should not be construed as representing ASA policy (unless otherwise stated), dictating payment policy, making clinical recommendations, substituting for the judgment of a physician or consultation with independent legal counsel. Specific questions regarding compliance should be reviewed with your appropriate advisors before making a determination.
Week of 11/27/2023
Q: Are there any updates on the Independent Dispute Resolution (IDR) process?
A: Yes, last week, the Federal Departments announced the extension of IDR submission timelines that expired on November 3rd. The Departments are now granting extensions of timelines that are tied to requests for responding to an IDR entity’s request for additional information needed to determine a dispute’s eligibility for the Federal IDR process or to make a payment determination, and for submitting offers to an IDR entity.
The previously extended timelines became effective on October 6, 2023, when the Departments reopened the Federal IDR portal for initiation of certain new single disputes, including disputes involving bundled payment arrangements. At that time, the Departments extended the deadlines by:
Since these extensions expired, the new extensions are:
Direct your questions to the Federal IDR mailbox at [email protected].
Regarding batching, ASA has been advocating for the expansion of batching rules for anesthesia claims and is pleased to see movement forward that will aid practices when disputing claims. You can find the proposed changes by the Federal Departments below in the last question of the week. We expect to have more updates in the coming weeks.
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes.
IDR TIP - Clear your computer’s cache at least once a week!
Since the updates to the Federal IDR web forms continue, the Departments ask that if you initiated a Federal IDR dispute previously that you clear your computer’s cache or open the Federal IDR initiation web forms in a private or incognito window to see all the new features. Do this at least once a week to ensure you see the most up-to-date version of the initiation form. Failure to clear your cache or open this form in private/incognito mode could result in additional follow-up with certified IDR entities or system errors.
Week of 11/08/2023
Q: The federal Departments are proposing changes to the batching rules. What does this entail?
A: The federal Departments recently proposed important changes to existing batching rules. Through a No Surprises Act Independent Dispute Resolution Operations proposed rule published on October 27, 2023, the Departments are proposing several changes to the batching rules and operations consistent with ASA recommendations. ASA has been advocating for the expansion of batching rules for anesthesia claims and is pleased to see movement forward that will aid practices when disputing claims. The proposed changes include:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes.
Week of 10/25/2023
Q: Is the government trying to overturn a recent Texas Medical Association (TMA) lawsuit victory?
A: Yes, the government is appealing their recent loss in TMA III. Previously the government filed paperwork to appeal their loss of TMA II. TMA III challenged the federal government’s rules guiding insurers in calculating their Qualified Payment Amount (QPA). The QPA is the median rate the insurer would have paid for the service if provided by an in-network provider. The flawed rules permitted insurers to deflate their QPAs forcing anesthesiologists to utilize the independent dispute resolution (IDR) process to obtain appropriate payment rates.
TMA III’s ruling was a significant win for physicians and especially anesthesiologists. The ruling halted the use of “ghost rates” (rates that were never negotiated nor used but are present in contracts) and insurers’ exclusion of bonuses and incentives from QPA calculations. ASA filed an amicus brief in support of TMA III and jointly funded the Avalere Health study (PDF) that confirmed payers were using “ghost rates.” ASA is preparing a new amicus brief in support of the court’s favorable ruling.
CMS expects payers to calculate QPAs using a “good faith, reasonable interpretation of applicable statutes and regulations” that remain in effect after the TMA III court decision. ASA and other stakeholders remain deeply concerned about the lack of a strong mechanism to hold payers accountable for accurate QPAs. If QPAs continue to be under market value for services, then the IDR process needs to be more workable. ASA is going to continue to push for batching to resume and batching rules improved. ASA is also commenting on the NSA proposed fee rule and working with lawmakers for additional oversight and even legislation.
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes.
Week of 10/10/2023
Q: Has the Independent Dispute Resolution (IDR) portal opened to new claims?
A. Yes, but… The Independent Dispute Resolution portal reopened on Monday, October 9th, for new single and bundled claims. However, the portal remains closed for all batched claims (new and previously initiated). The federal Departments are currently working on updating guidance, portal functions, and coding in line with the Texas Medical Association (TMA) IV court decision that vacated previously established batching requirements. This is extremely frustrating for physicians, especially anesthesia practices that need to bring batched claims to the IDR. The Centers for Medicare & Medicaid (CMS) claims that they are focused on opening the portal to all claims as soon as possible and will consider timeline extensions. There are a few extensions depending on the type of claim and its initiation period to note:
CMS also announced their response to the TMA III court ruling. The ruling vacated many provisions related to calculation of the qualifying payment amount (QPA), including provisions permitting payers’ use of “ghost rates.” ASA and other physician stakeholders had expected CMS would announce new rules and guidance to reflect the court’s ruling. However, CMS has indicated that no new rules or guidance will be forthcoming and that, instead, they intend to implement a six-month period of “enforcement discretion” related to QPAs. Specifically, CMS expects payers to calculate QPAs using a “good faith, reasonable interpretation of applicable statutes and regulations” that remain in effect after the TMA III court decision. Further, CMS stated that it will assist plans with recalculation of QPA in lieu of penalizing payers over the next six months. ASA and other stakeholders remain deeply concerned about the lack of a strong mechanism to hold payers accountable for accurate QPAs. Jointly we continue to explore opportunities for regulatory and legislative action to protect practices from unreasonable QPAs. See this CMS FAQ on this subject (PDF).
Week of 9/25/2023
Q: What happened last week with the No Surprises Act?
A. There was much activity last week including a Congressional hearing. These are the developments…
ASA Files a New Amicus Brief
ASA with the American College of Emergency Physicians (ACEP) and American College of Radiology® (ACR®) filed an amicus brief to jointly urge a US Appeals Court to uphold a February 2023 TMA II decision that barred IDR entities from giving preferential treatment to payer-calculated QPAs during the consideration of disputes. The government is appealing the February 2023 ruling by the US District Court for the Eastern District of Texas. ACEP, ASA, and ACR strongly support the court’s decision to invalidate the QPA calculation. Failure to uphold the court’s recognition that the IDR entity’s consideration of the QPA is fundamentally flawed could re-open the door for insurers to resume purposefully undervaluing vital medical care to undermine physician practices.
Congressional Hearing on Flawed NSA Implementation
The House Committee on Ways and Means held a hearing on Tuesday, September 19, to discuss issues raised by stakeholders about the flawed implementation of the No Surprises Act. The bipartisan hearing came in response to concerns raised by ASA and other stakeholders that the implementation of the law was inconsistent with the language of the law and that Congressional intervention was necessary. The hearing highlighted the need for legislative action to fix implementation issues such as IDR backlogs, bogus payer-calculated qualifying payment amounts (QPA), overly restrictive batching and payers’ failure to pay physician practices that prevailed in the IDR process. Two days after the hearing, ASA Director for North Carolina Paul Rieker represented anesthesiologists in a meeting with members of the House Congressional Doc Caucus, composed of Republican physicians and other health care professionals, to further discuss potential solutions to problems with the No Surprises Act implementation.
Independent Dispute Resolution Process (IDR) Portal Partially Reopens
On September 21st, the Departments directed certified IDR entities to resume processing all single and bundled disputes submitted on or before August 3, 2023. The Departments stated they will provide guidance soon about other issues associated with these decisions. The portal remains closed to new submissions.
New Proposed Rules on IDR Fees
Also on September 21st, the federal departments released a new proposed rule regarding fees associated with the IDR process. The proposed rule details how the administrative and IDR fees will be calculated depending on if a claim is a single or batched item. The new proposed rule is a result of litigation (Texas Medical Association IV) that required the federal Departments to post for comment any changes in the fees through formal rulemaking. A final rule will take effect in January 2024. ASA along with other associations had previously advocated against the increase in fees that were irrational and overly burdensome for practices. The new rule proposes to:
ASA is completing a review of the proposed rule and will be submitting comments in opposition to many of the elements of the rule.
Week of 9/11/2023
Q: When will the Independent Dispute Resolution (IDR) portal reopen?
A. ASA expects the portal to reopen once changes to the portal and IDR process, as required by the “Texas Medical Association (TMA) III” ruling (PDF) are made. As of last week, the CMS announced that the portal remains temporarily closed. You will not be able to initiate new disputes. However, effective September 5, 2023, the Departments directed IDR entities to proceed with eligibility determinations for single and bundled disputes submitted on or before August 3, 2023. You should continue to respond to any requests for information from IDR entities where you have disputes pending. You should also continue to engage in any open negotiations. All other aspects of the federal IDR process operations remain suspended. You will not be asked to pay fees or submit offers in relation to any eligible disputes.
The pause and redirection of the IDR entities is due to the rulings from the United States District Court for the Eastern District of Texas on TMA IV. For details about this ruling, see the NSA Question of the week from 8/28/2023 below. As a result of this ruling and TMA IV’s recent court ruling, we expect new rules to be amended/drafted to follow the court’s decisions. The Departments will also evaluate current IDR processes, templates, and system updates that will be necessary to comply with the court’s order.
Government appeals of the rulings are also possible. ASA filed amicus briefs in support of both TMA III and IV. In the interim, here are recent resources to use:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes.
Week of 8/28/2023
Q: A court ruling was rendered on Texas Medical Association’s III lawsuit challenging rules of the No Surprises Act. What now?
A. On August 24, the United States District Court for the Eastern District of Texas ruled mostly in favor of physicians and health care providers in the “Texas Medical Association (TMA) III” decision related to the implementation of the No Surprises Act (NSA). This case primarily challenged the federal government’s rules guiding insurers in calculating their Qualified Payment Amount (QPA). The QPA is typically the median rate the insurer would have paid for the service if provided by an in-network provider or facility. The flawed rules permitted insurers to deflate their QPAs forcing anesthesiologist to utilize the independent dispute resolution (IDR) process to obtain appropriate payment rates. This is a significant win for physicians and especially anesthesiologists. The court ruling halts the use of “ghost rates” (rates that were never negotiated nor used but are present in contracts) and insurers’ exclusion of bonuses and incentives from QPA calculations. Here are the ruling details most applicable to anesthesiologists:
In TMA III, the plaintiffs challenged:
The court found the following provisions unlawful and rescinded them nationally:
This is the last of the four cases that the TMA brought before the court. As a result of this ruling and TMA IV’s recent court ruling, we expect new rules to be amended/drafted to follow the court’s decisions. Government appeals of the rulings are also possible. ASA filed amicus briefs in support of both TMA III and IV. In addition, ASA expects the portal to reopen once changes to the portal and IDR process, as required by the TMA IV ruling, are implemented. In the interim, here are recent resources to use:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes.
Week of 8/16/2023
Q: The IDR portal is paused again. What is going on?
A. Currently, the portal is paused as the result of a favorable Federal Court ruling in the Texas Medical Association’s (TMA) fourth litigation, commonly known as TMA IV, challenging the flawed implementation of the No Surprises Act. ASA expects the portal to reopen once changes to the portal and IDR process, as required by the TMA ruling, are implemented.
On August 3rd, the United States District Court for the Eastern District of Texas ruled in favor(PDF) TMA in its challenge to the No Surprises Act’s $350 administrative fee and flawed batching rules. In this case the courts ruled that the government acted unlawfully when it unilaterally raised the independent dispute resolution (IDR) administrative fee from $50 to $350 for 2023 and established restrictive batching rules, both without following proper public notice and rulemaking processes. ASA joined the American College of Emergency Physicians (ACEP) and the American College of Radiology (ACR) in an amicus brief (PDF) filed in support of the TMA IV lawsuit.
As an immediate result of this ruling, the government suspended the federal IDR process, including the ability to initiate new disputes until the federal Departments can provide additional instructions. The government did not provide a timeframe for such reopening, stating that they “intend to reopen the portal to permit the initiation of new disputes soon and will notify interested parties at such time.”
In addition, with this ruling, the IDR fee will return to $50. If you or a health plan already paid the higher administrative fee of $350 anytime from January 1, 2023, through August 2, 2023, you will not be refunded. The TMA IV court decision weighed in on this specific issue and did not grant refunds of the higher administrative fee. If a party sent a $350 check to the IDR entity any time on or after August 3, 2023, or had been invoiced for this higher amount, the check or invoice will be cancelled, and the party will be billed again for the lower amount of $50. Further, the Departments clarify that if one party in a dispute had paid $350 already before August 3 but the other party had not, the party that did pay will not receive a refund and the party that did not pay will only be assessed a $50 fee. For details about the fees, see the PDF No Surprises Act (NSA) Independent Dispute Resolution (IDR) Administrative Fee Frequently Asked Questions (FAQs).
Lastly, from the ruling, the batching rule which allowed arbitration processes only on claims with the same service code will be vacated until such time as the Departments can appropriately notify the public and permit stakeholders to comment on the two topics. This is a win for physicians. Small practices were especially cost-prohibited in filing federal IDR claims due to the administrative fee hike.
ASA remains steadfast in urging the Departments to expand batching of anesthesia services and enforcing of the timely payment by payers with the government and Congress. As ASA continues to raise issues with the government and Congress, physicians and practices should continue to file complaints with the government to document the insurer’s gaming of the system. The resources to use include:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. ASA cannot do this without your input and experiences (direct and indirect) that help guide ASA efforts.
Week of 7/31/2023
Q: We heard that the government is appealing one of the Texas Medical Association (TMA) challenges to the No Surprises Act. Does ASA have any details?
A. On April 6th, HHS and other federal departments filed a notice to appeal the Texas Medical Association II (TMA II) ruling (PDF), a ruling that required HHS to rewrite their rules regarding how the Qualified Payment Amount (insurer-calculated amount that is intended to reflect an insurer’s median-in-network contracted amount) is considered by arbiters. TMA II challenged the No Suprises Act’s final rules that unfairly favored health insurers by requiring arbitrators in the IDR process to weigh the suspect QPA more heavily than any other factor in determining the most appropriate out-of-network rate. ASA filed an amicus brief in support of the TMA II litigation noting that the QPA does not reflect fair market value of out-of-network items and services and incentivizes insurers to lower in-network rates. Both of these lead to under-compensation of care and further restrict patient access to providers especially in underserved areas.
In this appeal, the federal departments argue that the district court was in error when it vacated the final rules. These are the case main arguments:
ASA is determining its next steps and will continue to provide details to members. ASA anticipates another rule in the near future that may address issues including batching, IDR delays, and enforcement of payments to the prevailing party of an arbitration. ASA continues to raise these issues with the government and Congress. As ASA continues to raise issues with the government and Congress, physicians and practices should continue to file complaints with the government to document the insurer’s gaming of the system. The resources to use include:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. ASA anonymously shares member experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. ASA cannot do this without your input and experiences (direct and indirect) that help guide ASA efforts.
Week of 7/17/2023
Q: Is there any new guidance or updates on the QPA or other IDR aspects?
A. Unfortunately, there are no updates or guidance on the QPA. On July 7, 2023, the Departments of Labor, Health and Human Services, and the Treasury released new FAQs (PDF) about the implementation of certain provisions of the Affordable Care Act (ACA) and the No Surprises Act. The new guidance addresses facility fees, conflicting requirements on cost-sharing, and the implementation hold on good faith estimates for insured patients. We are disappointed that the FAQs fail to address the system-wide outrageous issues faced by all specialties. However, we do anticipate another rule in the near future that may address some of the issues including calculation of the QPA, batching, IDR delays, and enforcement of payments to the prevailing party of an arbitration. ASA continues to raise these issues with the government and Congress.
The new FAQs clarified that requirements for good faith estimates for insured individuals are still not required. The Departments are delaying the implementation of this until further notice. Health plans will be required to provide cost estimates as part of Advanced Explanation of Benefits (AEOBs) for beneficiaries. Anesthesiologists will also need to abide by the requirements to provide cost estimates with diagnostic codes for items and services as part of scheduled services for insured patients as part of the AEOB. The process for this is unclear. The insurer/plan will need to gather the information from all the physicians and/or facility.
Regarding facility fees, the FAQs state a growing concern that “individuals are increasingly being charged facility fees for health care received outside of hospital settings, which increases health care costs.” The Departments are monitoring the potential implications of facility fees and that facility fees must be included as part of good faith estimates to uninsured/self-pay individuals as well as the price comparisons required by the Transparency in Coverage (TiC) Final Rules that require plans and issuers to make information available to participants, beneficiaries, and enrollees.
Lastly, the new FAQs also clarify that, in general, there should be consistency in how cost-sharing is applied to consumers. Cost sharing by non-participating providers under the NSA is also considered cost sharing for purposes of the maximum out-of-pocket limit (MOOP limit) and in-network status should also be treated the same. “Participating provider,” “participating health care facility,” and “participating emergency facility” is defined in terms of whether the provider or facility has a contractual relationship directly or indirectly with a group health plan or health insurance issuer offering group or individual health insurance coverage setting forth the terms and conditions on which a relevant item or service is provided to a participant, beneficiary, or enrollee under the plan or coverage, respectively. For example, “Under no circumstance can an emergency facility providing emergency services to a participant, beneficiary, or enrollee be “out-of-network” for purposes of the MOOP limit and simultaneously be a “participating” emergency facility for purposes of the balance billing and cost-sharing protections under the No Surprises Act.” By issuing this clarification, the Departments believe that they are closing a loophole that left patients exposed to higher out-of-pocket costs.
The new FAQs and others are available at Department of Labor and cms.gov
As ASA continues to raise issues with the government and Congress, physicians and practices should continue to file complaints with the government to document the insurer’s gaming of the system.
The resources to use include:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. We share experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. We cannot do this without your input and experiences (direct and indirect) that help guide our efforts. ASA will continue to push the federal Departments to make changes to the flawed and unfair IDR process.
Week of 7/3/2023
Q: We are not receiving payments from insurers after winning through the Independent Dispute Resolution (IDR) process. Are other members experiencing similar problems with delays in payments?
A. Yes, this is an outrageous systemwide problem and violation of the No Surprises Act (NSA). The party that loses the IDR case must pay the winning party within 30 days of a decision. All specialties across the US are experiencing delays. Due to the magnitude and frequency of this problem, ASA has raised the issue with Congress and the regulatory agencies. During the ASA’s Legislative Conference, 500 anesthesiologists met with lawmakers, and this was one of the priority issues.
Most recently, as part of a pending lawsuit, Center for Consumer Information & Insurance Oversight’s (CCIIO) leadership acknowledged the problem of delayed payments. CCIIO reported that between January 2022 and May 2023, 1300 complaints against plans and issuers were filed. Of these:
We suspect the above number of complaints is low. It is likely that other complaints are being referred to the Department of Labor and to states.
This ongoing problem reflects just one of the major flaws in the implementation of the NSA. Moreover, relying on insurers to self-correct is unacceptable. As ASA continues to raise these issues with the government and Congress, physicians and practices should continue to file complaints with the government to document the insurer’s gaming of the system. The resources to use include:
As always, reach out directly to ASA’s NSA team to share your experiences at [email protected] or via this 5-minute survey. We share experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. We cannot do this without your input and experiences (direct and indirect) that help guide our efforts. ASA will continue to push the federal Departments to make changes to the flawed and unfair IDR process.
Week of 6/19/2023
Q: What is CMS telling patients about the No Surprises Act?
A. Last week, the Centers for Medicare and Medicaid Services (CMS) launched new comprehensive webpages with guidance and resources to help educate patients about their rights and what they can expect and do with medical bills as result of the No Surprises Act.
As part of these webpages, patients are informed of their right to a Good Faith Estimate (GFE) and prompted to request one. For surgical procedures, patients are told to ask for a GFE from their provider and one from the hospital. The example provided to patients is the same one that physicians and providers can use to create GFEs. All physicians and facilities can be subject to the GFE obligations. As a result of CMS’ new webpages, there may be an increase in requests for a GFE, as well as payment disputes under the “patient-provider dispute resolution”. To ensure you know if you need to comply and how, see last week’s question of the week.
Explore the patient-side of the NSA with these resources:
As always, reach out directly to our NSA team to share your experiences at [email protected] or via this 5-minute survey. We share experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. We cannot do this without your input and experiences (direct and indirect) that help guide our efforts. ASA will continue to push the federal Departments to make changes to the flawed and unfair IDR process.
Week of 6/5/2023
Q: What are Good Faith Estimates, and do I need them?
A. ASA was recently contacted by the Centers for Medicare and Medicaid Services (CMS) requesting anesthesiologists’ perspective on the Good Faith Estimate provisions of the No Surprises Act. ASA intends to provide input to ensure that the provisions are implemented consistent with the actual text of the law and in a manner that is not overly burdensome to anesthesiologists’ practices. The request from CMS also served as a good reminder that the implementation of the GFE requirements should be closely monitored by all anesthesiologists.
The No Surprises Act requires that all physicians and health care providers – both hospital and office-based – offer a good faith estimate (GFE) to uninsured or self-pay patients (including those with insurance that prefer not to file a claim) before scheduled services or upon request. Physicians must generate cost estimates that capture all charges that likely will be incurred by the patient. Many physicians may generate estimates using the same billing systems that existed prior to the No Surprises Act, but some changes may be necessary to meet new regulatory requirements. The cost estimate should not be a generic estimate, but as specific as possible to be more accurate, thus a high-risk patient that may require more time or resources should be factored into the estimate. The GFE in general, must be provided no later than three days prior to the procedure.
Convening providers (those who scheduled the services), such as surgeons and pain medicine physicians must provide a GFE upfront. You may have already seen notices at your institutions informing patients of their right to a GFE. Anesthesiologists must provide a GFE for their anesthesia services to the convening provider (surgeon or proceduralist) as part of the overall, single GFE for a patient. However, a patient can now ask for a GFE from any physician, and thus whoever the patient asks by law becomes the convening provider. We don’t expect an anesthesiologist to be asked frequently, but if so, be prepared to provide one and/or work with your surgeon or proceduralist to comply. For details on this consult pages 4-6 of ASA’s Implementing the No Surprises Act Overview PDF download.
Some GFE implementation requirements have been paused by the federal agencies, but with each update the agencies provide more guidance on the GFE. For example, the start date for providing estimates as part of an Advanced Explanation of Benefits (AEOB) to insurers to provide to their beneficiaries was postponed by the federal agencies (the technology for this is in development). ASA will communicate updates as we obtain them. However, we encourage members to become familiar with the process and begin to formulate processes for complying with the current required GFE and for future requirements for AEOBs. Here are a few resources to get you started:
As always, reach out directly to our NSA team to share your experiences at [email protected] or via this 5-minute survey. We share experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. We cannot do this without your input and experiences (direct and indirect) that help guide our efforts. ASA will continue to push the federal Departments to make changes to the flawed and unfair IDR process.
Week of 5/22/2023
Q: Did ASA members lobby Congress at the recent Legislative Conference to fix the implementation of the No Surprises Act (NSA)?
A. Yes, at this year’s Legislative Conference, the flawed NSA implementation was a key issue raised with legislators. In approximately 100 meetings with lawmakers and Congressional staff, ASA members asked for Congress to hold the agencies accountable for implementation of the NSA in a manner consistent with Congressional intent, including pressing the agencies to
As a result of these meetings, a number of lawmakers agreed to contact the Centers for Medicare and Medicaid Services (CMS) to seek revisions to NSA rules and guidance. We will report back on what we learn.
Additionally, there are several opportunities for helping ASA strengthen our advocacy efforts on the No Surprises Act throughout the year. One important way is to participate in our short surveys asking about contract negotiations and/or your direct experiences with the IDR process. Share your experiences via this 5-minute survey!
You can also reach out directly to our NSA team to share your experiences at [email protected]. We share experiences with the legislators and federal agencies involved in making and implementing NSA rules and processes. We cannot do this without your input and experiences (direct and indirect) that help guide our efforts. ASA will continue to push the federal Departments to make changes to the flawed and unfair IDR process.
Week of 5/1/2023
Q: Are there updates on the status of federal Independent Dispute Resolution (IDR) claims?
A. Yes, on April 27th, the Centers for Medicare & Medicaid Services provided a status update on the federal IDR process from April 15, 2022, through March 31, 2023, in conjunction with an initial report on the fourth quarter of 2022. Overall, the report states what has been previously shared: the number of disputes was more than expected in the first year alone, determining eligibility is complex and time-intensive, and the Departments continue to work on improving the technical and operational aspects of the IDR process. There remain disputing parties who are still awaiting eligibility and payment determinations in a large number of disputes. Other takeaways from the Departments’ status update and report include:
Status Update
Partial Fourth Quarter Report (a subsequent report may be issued to Q4 2022)
ASA’s perspective remains that payers are underpaying anesthesiologists’ practices thereby leaving practices no option other than to engage in the IDR process to receive a reasonable payment. It is the payers who are causing the high volume of IDR claims. This is likely to continue until payers are held accountable for reasonable payments, ASA also continues to support changes to the IDR process to reduce the cost and administrative burden to practices. In particular, the federal agencies must address excessive and unreasonable fees and restrictive batching rules and guidance.
ASA continues to push the federal Departments to make changes to the IDR process overall. Thus, it is urgent that we hear from you about your experiences to date including any changes to contract negotiations.
Share your experiences via this 5-minute survey!
Week of 4/17/2023
Q: Are there any recent developments in the implementation of the NSA?
A. Yes, there were two significant developments in recent weeks.
First, at the urging of key hospital and physician stakeholders, including ASA, Congress continues to scrutinize the No Surprises Act’s flawed implementation. On March 28 and 29th, U.S. Health and Human Services (HHS) Secretary, Xavier Becerra, testified before multiple House Committees regarding the department’s fiscal year 2024 budget request. These appearances built upon the prior week’s testimony before the Senate Finance Committee.
Several members of Congress used the budget hearings to aggressively question the Secretary about the flaws of the NSA process including lack of preparedness by the federal departments for the amount of disputed claims that would be received; the 600% increase in the non-refundable administrative fee required to access the federal Independent Dispute Resolution (IDR) process, arbiters favoring the insurers in the overwhelming majority of cases, and more. ASA and other stakeholders are continuing to push Congress to intervene further to address the broken system.
Watch the testimony on YouTube:
Additionally, on April 6th, HHS and other federal departments filed a notice to appeal the Texas Medical Association II (PDF) ruling, a ruling that required HHS to rewrite their rules regarding how the Qualified Payment Amount (insurer-calculated an amount that is intended to reflect an insurer’s median-in-network contracted amount) is considered by arbiters. TMA II challenged the NSA’s final rules that unfairly favored health insurers by requiring arbitrators in the IDR process to weigh the suspect QPA more heavily than any other factor in determining the most appropriate out-of-network rate. ASA filed an amicus brief in support of TMA II noting that the QPA does not reflect fair market value of out-of-network items and services and incentivizes insurers to lower in-network rates. Both of these lead to under-compensation of care and further restrict patient access to providers especially in underserved areas. The date of the hearing on the appeal has not yet been set.
Week of 4/3/2023
Q: Have there been changes to the rules for batching claims?
A. While there have not been major changes, the federal Departments have provided some updated clarification on batching of claims. Specifically, following a recent meeting between ASA and The Center for Consumer Information and Insurance Oversight (CCIIO), the agency clarified that batching across claims paid under different fully insured plans offered by the same issuer is permitted under the current batching system.
If an IDR entity states that you cannot batch claims paid by the same issuer because they were paid under different fully insured plans, you should provide evidence to the IDR entity that the plans are fully insured by the same issuer, and that therefore, claims paid by the plans can be batched together. If you continue to experience difficulty, notify the Departments of the issue by emailing [email protected].
ASA continues to urge the federal Departments to permit batching of all anesthesia claims (instead of by same CPT code) by issuer to allow a large volume of cases to be disputed with only the anesthesia conversion factor in question.
Per the current federal guidance, an IDR entity may consider multiple qualified IDR services jointly as a part of one IDR payment determination when:
Guidance for batching from cms.gov include:
Week of 3/20/2023
Q: Are there any updates on the resumption of the Independent Dispute Resolution (IDR) process for some claims?
A. Yes, on March 17, 2023, the government announced that it is has instructed No Surprises Act IDR entities (IDREs) to resume making payment determinations for disputes involving services furnished on or after October 25, 2022. The standards governing an IDRE’s consideration of information when making payment determinations in these disputes are provided in the Requirements Related to Surprise Billing; August 2022 final rules, as revised by the Texas Medical Association’s successful lawsuit, also known as TMA II. Relevant links include Federal IDR guidance IDR entities March 2023 (PDF) and Federal IDR guidance disputing parties March 2023 (PDF).
On the surface, this new guidance appears to require IDR entities to consider all No Surprises Act factors when resolving a payment dispute between a physician and insurer. We created the chart below to help you navigate and point you to resources to consult as you continue with your claims. The new changes and guidance should be explicit with the updated criteria and be helpful with preparing IDR claims. You can also read more about the updates at Payment disputes between providers and health plans from CMS.
According to the government, starting March 17, 2023, disputing parties will begin receiving a majority of their payment determination notices from the IDR portal, specifically from [email protected]. The government has suggested that practices add this address to the practice safe sender list to ensure that important messages do not go to spam.
Lastly, it is important to note that the government did not pause the open negotiation period. This period must be initiated within 30 business days beginning on the day the out-of-network provider receives either an initial payment or a notice of denial of payment for the service from the plan, issuer, or carrier. Furthermore, evidence of the open negotiation period start date and notices of exchanges will continue to be required when initiating the IDR process.
It remains vital for you to share your experiences so that ASA can share with CCIIO and policymakers to improve the process for anesthesia practices. Email us at [email protected]
Week of 3/6/2023
Q: The Independent Dispute Resolution (IDR) process resumed for some claims. Can you provide any specifics?
A. This has been a confusing and frustrating disruption to the IDR process. Here is what transpired and how the pause and restart is affecting claims that ASA is aware of …
The Centers for Medicare and Medicaid Services (CMS) announced a pause on payment determinations of claims submitted after February 10 until further guidance is released to comply with the recent Texas Medical Association (TMA) lawsuit II ruling. Via email, IDR entities have also been instructed to recall any payment determinations issued after Feb. 6, 2023. However, CMS instructed IDR entities to continue working through other parts of the IDR process including eligibility determinations. The pause is likely to further delay the IDR process and exacerbate the existing backlogs.
On February 24, IDRs were instructed to resume payment determinations involving out-of-network services and items furnished before Oct. 25, 2022. However, IDRs will continue to hold payment determinations for services furnished on or after Oct. 25, 2022, while the federal agencies issue further guidance. We expect updates to the IDR processes, guidance, templates, and systems that are necessary to comply with the court’s order.
ASA ACEP and ACR Urge Resumption of NSA Dispute Resolution Process to urge the government to act expeditiously to resume the entire dispute process.
It is important to note that the pauses in some of the claims submitted, do not mean that there is a pause in the overall payment and dispute process. The open negotiation period is not on hold. This period must be initiated within 30 business days beginning on the day the out-of-network provider receives either an initial payment or a notice of denial of payment for the service from the plan, issuer, or carrier. Furthermore, evidence of the open negotiation period start date and notices of exchanges will continue to be required when initiating the IDR process.
You can follow the updates on cms.gov at Payment disputes between providers and health plans. ASA will share any new changes and timelines as soon as we obtain information. The new changes and guidance should be explicit with the updated criteria and be helpful with preparing IDR claims in the future.
It remains vital for you to share your experiences so that ASA can share with CCIIO and policymakers to improve the process for anesthesia practices. Email us at [email protected]
Week of 2/20/2023
Q: Has the Independent Dispute Resolution (IDR) process been paused?
A. The Centers for Medicare and Medicaid Services (CMS) announced a pause on payment determinations of claims submitted after February 10 until further guidance is released to comply with the recent Texas Medical Association (TMA) lawsuit II ruling (PDF). Via email, IDR entities have also been instructed to recall any payment determinations issued after Feb. 6, 2023. However, CMS instructed IDR entities to continue working through other parts of the IDR process including eligibility determinations. The pause is likely to further delay the IDR process and exacerbate the existing backlogs.
ASA will share any new changes and timelines as soon as we obtain information. The new changes and guidance should be explicit with the updated criteria and be helpful with preparing IDR claims in the future. ASA has been in frequent contact with Center for Consumer Information and Insurance Oversight (CCIIO) leadership and staff regarding problems with NSA implementation. ASA is also pushing the federal agencies to allow batching claims by payer (instead of by CPT code) to allow a large volume of cases to be disputed with only the anesthesia conversion factor in question. It remains vital for you to share your experiences so that ASA can share with CCIIO and policymakers to improve the process for anesthesia practices. Email us at [email protected]
Week of 2/6/2023
Q: Can you provide an update on litigation efforts on the No Surprises Act?
A. Currently there are two pending lawsuits by the Texas Medical Association (TMA) against the US Departments of Health and Human Services, Labor, Treasury, and the heads of the agencies. All of these lawsuits’ outcomes can result in future rulemaking by the departments. The latest lawsuit (PDF), TMA IV, filed on January 31, 2023, challenges the 600% increase in the non-refundable administrative fee required to access the federal Independent Dispute Resolution (IDR) process. The increased fee of $350 from $50 is due for any new dispute filed beginning in 2023. The increase will cost-prohibit many physicians and small practices from seeking appeals for unpaid or insufficient payment by insurers. Those physicians who mostly have small-value claims will be the most negatively affected.
TMA also disputes the implementation rules’ narrowing of the law’s provisions on “batching” claims for arbitration, which Congress authorized to encourage efficiency and minimize costs in the IDR process. TMA calls out that physicians with small-value claims can only access the IDR if they combine all claims of one service code in one IDR proceeding. The NSA allows the Departments to permit batching of claims for all of the treatments or procedures in a patient’s treatment plan, in a patient’s episode of care, or even across patients with similar conditions. However, the Departments’ rule permits batching only if the items and services are “the same or similar items or services,” i.e., if each is billed under the same service code. Both the increase in the fee and restriction in batching rules were made without notice and comment from the public and stakeholders, unlawful by the Administrative Procedure Act. The results from this case will significantly impact anesthesia claims.
TMA’s second lawsuit (PDF) filed in September 2022, challenges the NSA’s final rules that unfairly favor health insurers by requiring arbitrators in the IDR process to weigh more the suspect, insurer-calculated qualified payment amount (QPA), an amount that is intended to reflect an insurer’s median-in-network contracted amount, than any other factor in determining the most appropriate out-of-network rate. ASA filed an amicus brief in support of TMA’s second lawsuit. The brief notes that the QPA does not reflect fair market value of out-of-network items and services and incentives insurers to lower in-network rates. Both of these leading to under-compensation of care and further restricting patient access to providers especially in underserved areas. On February 6, 2023, a federal court in Texas ruled in favor of the TMA. The Court noted that in the government’s August surprise billing final rule, they continued to direct arbiters to give more preferential consideration to the QPA, “tilting arbitrations in favor of insurers, and thereby lowering payments to providers.” The Court noted that “the Act nowhere states that the QPA is the primary or most important factor—or that it must be weighed more heavily than, or considered before, other factors.” In ruling in favor of the TMA, arbiters will consider all the criterion referenced in the NSA statute as written, without giving additional weight to the QPA, absent a successful appeal by the government. ASA’s amicus brief was referenced in the Court’s ruling. The federal agencies will have to revise implementation rules to reflect the court’s ruling. This is a huge win for physicians and patients.
TMA filed its third lawsuit (PDF) in November 2022 challenging certain portions of the July 2021 interim final rules implementing the federal NSA. This lawsuit challenges the methodology for determining the QPA. The lawsuit focuses on “ghost rates” in contracts and the determination of the physician specialty for QPA purposes. No hearing date has been set for this case. ASA also filed a joint amicus brief with the American College of Emergency Physicians and American College of Radiology® in support of TMA’s third lawsuit. The brief notes that the IDR rules prevents physicians and facilities from engaging in fair contracting negotiations with insurers, which will result in more physicians and facilities being forced out-of-network.
It is vital for you to share your experiences so that ASA can share with CCIIO and policymakers to improve the process for anesthesia practices. Email us at [email protected]
Week of 1/23/2023
Q: Will there be any sessions about the No Surprises Act during ASA’s ADVANCE?
A. Yes. There will be several sessions on the No Surprises Act by ASA and industry presenters. The ASA-sponsored activities include a fireside chat and a roundtable discussion during ADVANCE on January 27th. Dr. Jonathan S. Gal, MD, MBA, MS, FASA will moderate the fireside chat, titled Taking the Surprise Out of The No Surprises Act, featuring Mr. Jordan Deuink, MBA, Steven Schulman, MD, MHA, FASA, and Manuel Bonilla, MS, ASA’s Chief Advocacy Officer. The chat will be on January 27 from 4-5pm ET. A Roundtable discussion will precede the chat from 1:50-2:20pm ET on January 27th. You can connect with the chat speakers as part of small groups.
Thank you for sharing your experiences with the No Surprises Act. We hope to see you during ADVANCE this week. If you cannot make it, email us at [email protected]
Week of 1/16/2023
Q: Has a new Independent Dispute Resolution (IDR) report been released?
A. On December 23, 2022, the Centers for Medicare & Medicaid Services released its Initial Report on the Independent Dispute Resolution (IDR) Process covering the period of April 15 - September 30, 2022 (the federal IDR portal was opened on April 15). The No Surprises Act requires the federal departments to publish information on the federal IDR process on a quarterly basis, including the number of disputes submitted, the number of determinations made, the number of times the payment amount determined exceeds the qualifying payment amount, CPT codes, type of practice location, and more.
The Departments published a status update on the federal IDR process in August 2022, but had not published a quarterly report until now. However, the Departments limited the scope of the report to a partial report (Q2 and Q3) and plan to issue full quarterly reports at a later date.
In the December report, the Departments describe that parties have submitted “significantly more” disputes than originally projected and that determining the eligibility of disputes is requiring more review than anticipated. The report includes a number of key takeaways including:
The report also highlighted that disputes were withdrawn due to disputes being subject to state, not the federal process, incorrect batching, missing information (e.g., health plan type) and other errors. ASA continues to demand that the IDR process be improved including the batching of claims. Until further changes are made, ensure that you are processing your claims following the guidance including:
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at [email protected]
Week of 1/11/2023
Q: Is it true that the Independent Dispute Resolution (IDR) process fees increased for 2023?
A: Yes, the federal agencies increased the administrative fee for each disputing party from $50 to $350 for claims initiated after December 31, 2022. This represents a 700% increase and is non-refundable. Each party pays the administrative fee to the certified IDR entity, which is then remitted to the federal agencies.
The administrative fee is in addition to the fee owed to the IDR entity by each disputing party at the time that an offer is submitted as part of the IDR process. The IDR entity fee also increased. Beginning January 1, 2023, IDR entities can charge a fixed IDR entity fee for single determinations within the range of $200–$700. Unlike the administrative fee, the IDR entity fee is ultimately the full responsibility of the party that loses in the IDR process and is kept by the IDR entity for the services it performs. The party that wins as part of the IDR process is to be returned their IDR entity fee within 30 business days following the date of the payment determination.
In response to the fee increases, the ASA issued a statement expressing opposition to the administrative fee increase and urging the government to forgo implementation of the increase. The increase in fees is making it cost-prohibitive for small anesthesia practices to access the IDR process and are having to consider unpaid or underpaid claims by payers as a total loss. ASA is urging the government to block implementation of the massive fee increases, reform the IDR process, and allow batching of anesthesia claims to decrease the burden for anesthesia practices to resolve claims.
Access the details about the updated fee schedule at cms.gov: Amendment to the calendar year 2023 fee guidance for the federal independent dispute resolution process under the No Surprises Act: change in administrative fee (PDF).
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at [email protected]
Week of 1/4/2023
Q: Are there any changes to the Qualified Payment Amounts (QPAs) for 2023?
A: Yes, the Internal Revenue Service (IRS) published the inflation adjustment to Qualifying Payment Amounts under the No Surprises Act for 2023. The increased percentage from 2022 to 2023 is 1.0768582128. The IRS provides guidance with examples of how the increased percentage should be used depending on the year the service was provided, whether the item or service is newly covered, and if there is insufficient data used to calculate the media QPA in a particular market. Find the details starting on page 4 of this PDF.
If you expect to render services covered by the balance billing limitations of the No Surprises Act, we suggest that you include a friendly note to your payors when initially billing for 2023 services. This will serve as a friendly reminder in case they missed the updated inflation amount and attempt to plead ignorance.
At the end of 2022, ASA requested that the federal agencies initiate audits of insurer calculated QPAs and publish the findings of those audits. ASA will provide members with any updates should the federal agencies publish any additional information.
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at [email protected]
Week of 12/21/2022
Q: Where can I find information about outcomes from the Independent Dispute Resolution (IDR) process?
A: The No Surprises Act requires that the federal departments provide a quarterly report about the federal IDR process. To date, the agencies have largely failed to publish information regarding the process. In the first and only IDR status update, the agencies pointed to delays on processing IDR claims due to unexpected volumes created by insurers. Access this report and future ones at CMS Regulations and Guidance. In a recent correspondence, ASA has requested that the agencies initiate audits of insurer-calculated qualifying payment amounts (QPA) and publish the findings of those audits. ASA will provide members with any updates should the federal agencies publish any additional information.
In addition to the federal status updates, some states also publish reports about surprise billing. For example, Texas’ Department of Insurance published their report in October on balance billing. Find out if your state publishes a similar report by accessing your state’s department of insurance.
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at [email protected]
Week of 12/14/2022
Q: What are anesthesia practices doing that has helped them obtain successful resolution of claims submitted through the federal Independent Dispute Resolution (IDR)?
A: ASA is continuing to collect information regarding “best practices” in successfully navigating the IDR process. However, based upon initial feedback, ASA members and their business managers have shared that they:
Consult these documents when beginning the IDR process:
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at [email protected]
Curated by: the ASA Department of Payment and Practice Management
Date of last update: November 26, 2023
