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More Changes to No Surprises Act Final Rule

On Friday, August 26, 2022, the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS), Department of Labor, and Department of Treasury (collectively, the Departments) issued a new Final Rule updating key regulations pertaining to the No Surprises Act. The Final Rule addresses disclosure requirements for group health plans and health insurance issuers related to the Qualified Payment Amount (QPA) for out of network services, as well as establishing the factors and information which certified federal independent dispute resolution (IDR) entities must consider in arbitrating disputes for out of network services or items. The Final Rule takes effect October 25, 2022 and covers services and items rendered during plan years beginning on or after January 1, 2022.

The July 2021 interim final rule initially required group health plans and health issuers to make certain disclosures. When the QPA serves as the recognized amount or the amount that serves as the basis for cost sharing with respect to out of network services, plans and issuers must disclose the QPA and certain related information, as well as certain additional information at the request of the provider or facility. When a plan or issuer down-codes the billed claim, the plan or issuer must automatically provide additional information about the QPA with an initial payment or notice of denial. The additional information must include a statement that the claim was down-coded, an explanation of why the claim was down-coded, and the amount that would have been the QPA had the claim not been down-coded.

In October 2021, the Departments issued their first attempt at establishing the information an IDR entity must consider, however these rules were challenged in court and subsequently vacated. Under the most recent Final Rule, a Federal IDR entity must weigh specific considerations and select the offer that “best represents the value of the qualified IDR service or item” as the out of network rate. Specifically, the IDR entity must consider the QPA for the same or similar qualified IDR service or item for the applicable year, as well as additional information submitted by a party related to:

  • The level of training, experience, and quality and outcomes measurements of the provider;
  • The market share held by the provider or the plan in the geographic region;
  • The acuity of the patient or the complexity of furnishing the service or item; and/or
  • Previously contracted rates between the provider and the plan for the past 4 years, if any.

Additionally, the new Final Rule requires that IDR entities issue written statements in connection with all Federal IDR disputes. It is worth noting that other aspects of the Federal IDR process established in the October 2021 interim final are not affected by the most recent Final Rule.

In addition to adopting the Final Rule, CMS published a chart to assist providers and payers in determining whether the Federal IDR process is available in their respective states, as well as guidance for parties submitting disputes. CMS also created a webpage offering tips and practical considerations for parties initiating a Federal IDR dispute. Providers are encouraged to familiarize themselves with the avenues through which they can dispute out of network payments in their state, based on the respective payer and service item at issue.

For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters, and our attorneys can assist providers and suppliers in understanding new developments in healthcare law and regulation. If you or your healthcare entity has any questions pertaining to OIG reviews or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or

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