The “Requirements Related to Surprise Billing; Part II” rule builds on the July 1, 2021 rule and the September 10, 2021 NPRM to continue implementing the No Surprises Act. The rule issued on September 30, 2021, outlines the federal independent dispute resolution process, good faith estimate requirements for uninsured (or self-pay) individuals, patient-provider dispute resolution processes for uninsured (or self-pay) individuals, and external review provisions of the No Surprises Act.
Independent Dispute Resolution
The September 30, 2021 rule establishes the federal independent dispute resolution process that OON providers, facilities, providers of air ambulance services, plans, and issuers in the group and individual markets may use to determine the OON rate for applicable items or services after an unsuccessful open negotiation. Not all items and services are eligible for the federal independent dispute resolution process. This process applies only to those services for which balance billing was prohibited under the “Requirements Related to Surprise Billing; Part I” rule.
Before initiating the federal independent dispute resolution process, disputing parties must initiate a 30-day “open negotiation” period to determine a payment rate. In the case of a failed open negotiation period, either party may initiate the federal independent dispute resolution process. The parties then may jointly select a certified independent dispute resolution entity to resolve the dispute. The certified independent dispute resolution entity and personnel of the entity assigned to the case must attest that they have no conflicts of interest with either party. If the parties cannot jointly select a certified independent dispute resolution entity or if the selected certified independent dispute resolution entity has a conflict of interest, the Departments will select a certified independent dispute resolution entity. After a certified independent dispute resolution entity is selected, the parties will submit their offers for payment along with supporting documentation. The certified independent dispute resolution entity will then issue a binding determination selecting one of the parties’ offers as the OON payment amount. Both parties must pay an administrative fee ($50 each for 2022), and the non-prevailing party is responsible for the certified independent dispute resolution entity fee for the use of this process.
When making a payment determination, certified independent dispute resolution entities must begin with the presumption that the QPA is the appropriate OON amount. If a party submits additional information that is allowed under the statute, then the certified independent dispute resolution entity must consider this information if it is credible. For the independent dispute resolution entity to deviate from the offer closest to the QPA, any information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA.
The rule also describes the independent dispute resolution entity certification process and the information independent dispute resolution entities must submit to be certified as federal independent dispute resolution entities. The rule provides a process by which members of the public, including providers, facilities, providers of air ambulance services, and plans or issuers, can petition for the denial or revocation of certification of an independent dispute resolution entity.
To ensure transparency in the independent dispute resolution process, the rule establishes monthly reporting requirements for certified independent dispute resolution entities to inform quarterly public reports on payment determinations.
The Departments will certify independent dispute resolution entities on a rolling basis. Entities that would like to be certified by January 1, 2022, should submit their application by November 1, 2021.
For more information, visit: https://www.cms.gov/newsroom
