No Surprises Act: Initial Report About IDR Process Shows Large Number of Disputes Filed, But Significant Backlog in Resolution

Health and Human Services (HHS) released an initial report in late December detailing the use and outcomes of the Independent Dispute Resolution (IDR) process established by the No Surprises Act (NSA). The report, which covers April 15, 2022, through September 30, 2022, found that during this time frame, providers initiated 90,078 disputes, the majority of which were for emergency services. The report also detailed a growing backlog of disputes that have not yet been closed by the IDR entities, and HHS's efforts to address it.

For services covered by the NSA, a provider, facility, or payer may initiate the IDR process if they cannot agree upon a payment amount during a 30-day open negotiation period. Services covered by the NSA include emergency services, non-emergency services furnished by out-of-network providers at in-network facilities, and certain air ambulance services provide by out-of-network providers. If a provider and payers are not able to resolve a dispute over payment for such services, a provider or health plan can submit the dispute to a Certified Independent Dispute Resolution Entity (IDRE), who is required to consider certain factors enumerated in the NSA and determine the appropriate reimbursement rate.

The report showed that the majority of disputes submitted to the IDR process were for emergency and non-emergency services, as opposed to air ambulance services. In addition, 84% of disputes were submitted by healthcare providers, while 15% of disputes were submitted by healthcare facilities. Health plans submitted fewer than 1% of disputes.

Emergency services accounted for 71,513 disputes, including 70,071 disputes for services provided in a hospital emergency room. The most commonly disputed CPT codes were for services provided in the emergency department, which comprised 66% of the disputes.

Ancillary services (as defined by the NSA) also represented a large number of disputes, with 16,932 disputes. The NSA does not allow certain ancillary providers—including providers of emergency medicine, anesthesiology, pathology, radiology, and neonatology—to request that a patient waive their protection against balance billing protections when those services are provided at a participating hospital by a non-participating ancillary provider.

A Growing Backlog

In the rulemaking process, HHS underestimated the volume of disputes that providers would submit to the IDR process. HHS had initially estimated that 17,333 claims would be submitted as part of the federal IDR process each year. The number of claims submitted between April 15th when the process opened and September 30—just over five months—was 520% more than HHS had anticipated for a single year.

In addition, the report indicated that only 23,100 disputes (26%) were closed. In 15% of the disputes that have been closed, the entities reached a payment determination. Further, 18% of the disputes submitted were deemed to be ineligible for the IDR process.

An additional 3,636 disputes (not pictured in the above graphic) were closed for other reasons, including the parties reached an outside settlement, incorrect batching, data entry errors, or unpaid fees.

According to the report, nearly half of disputes include one party contending that the dispute is not eligible for the IDR process. In fact, 80% of disputes that were challenged as ineligible by the non-initiating party were ultimately ruled by the IDRE to be ineligible for the IDR process. The report further states that determining eligibility for the IDR process is complex and, thus, is the "primary cause of delays in process disputes." With 74% of disputes remaining open and additional disputes being submitted every day, HHS has sought to stem the growing backlog by making it easier for IDREs to determine eligibility. First, on December 22, 2022, HHS updated the IDR process to require additional information for entities disputing the use of the IDR process. The update came by way of revisions to the Selection Response form on the IDR portal and updates to a guidance document regarding the IDR process. For instance, if an entity is arguing that the dispute is not appropriate for the IDR process because the dispute is eligible for a state process, the disputing entity must provide a citation to the state law and documentation confirming that the state law applies, including proof of the health plan type. In addition, a federal technical assistance team has begun providing technical assistance to IDREs by performing research and outreach on disputes about eligibility for the IDR process. Although the technical assistance team will provide assistance, the IDRE will make the final determination about eligibility for the IDR process, consistent with 45 CFR 149.510(c).

Davis Wright Tremaine is collaborating with healthcare providers and systems to develop efficient and compliant processes to comply with the No Surprises Act. Contact John Barnes or Christine Parkins Johnson if you would like to learn more.