Changes to the No Surprises Act independent dispute resolution process

The No Surprises Act (NSA) protects patients covered under group and individual health plans from receiving surprise medical bills when they receive most emergency services, non-emergency services from out-of-network physicians and providers at in-network facilities, and services from out-of-network air ambulance service providers. It also establishes an independent dispute resolution (IDR) process by which entities decide certain payment disputes between physicians and payers that qualify as surprise billing situations under the NSA.

On Aug. 19, 2022, three federal agencies released a final rule, effective Oct. 25, finalizing NSA requirements relating to the IDR process. These requirements largely focus on out-of-network services at in-network facilities, so they likely won’t significantly affect many family medicine practices.

Requirements for dispute resolution

Following recent court decisions, the final rule changes how various data points must be considered in the IDR process. The payer and the physician or provider must each submit their offer for the out-of-network payment amount for a claim. When determining which offer to select, the certified IDR entity must consider the qualified payment amount (QPA), which is generally the plan or issuer’s median contracted rate for the same or a similar service in the specific geographic area. The certified IDR entity must consider all additional information submitted to determine which offer best reflects the appropriate out-of-network rate. The appropriate out-of-network rate must be the offer the certified IDR entity determines best represents the value of the qualified IDR item or service. These changes are more closely aligned with advocacy from the American Academy of Family Physicians and other medical societies, who raised concerns that previous regulations disadvantaged physician practices by placing too much emphasis on the QPA.

The certified IDR entity must explain its determination in a written decision submitted to the parties and the Departments of Labor, Health and Human Services, and the Treasury. The written decision must explain why the offer selected as the out-of-network rate best represents the value of the qualified IDR item or service. If the certified IDR entity relies on any additional information in selecting an offer, the written decision must include why the certified IDR entity concluded this information was not already reflected in the QPA.

Requirements for downcoded claims

The final rule also require payers and issuers to provide additional information to physicians and facilities when they have "downcoded" a claim, defined as altering the service code or a modifier to lower the QPA to an amount less than that billed by the physician or facility. The plan or issuer must provide a statement that the service code or modifier billed was downcoded, why it was downcoded (including a description of which service codes or modifiers were altered, added, or removed), and what the QPA would have been if the service code or modifier had not been downcoded.

Additional information

For more information on the final rule, see the following:

• CMS Fact sheet,
• CMS Resolving out-of-network payment disputes.

For previous AAFP NSA advocacy and resources, see the following:

• AAFP letter to CMS on surprise billing rule, Sept. 7, 2021,
• AAFP letter to CMS on surprise billing regulations, part II, Dec. 3, 2021,
• AAFP Letter to CMS on good faith estimate burden, March 7, 2022,
• New surprise billing rule takes effect soon. Find out if it applies to you, Aug. 5, 2021.

— Brennan Cantrell, AAFP Practice and Payment Strategist

Posted on September 1, 2022, by FPM Editors