NSA update: Departments reopen IDR portal as GAO reports on troubled rollout

The US Departments of Health and Human Services, Treasury, and Labor (the Departments) reopened the Independent Dispute Resolution portal for all dispute types under the No Surprises Act (NSA) on December 15, 2023.

Following the August 2023 decisions by the US District Court for the Eastern District of Texas (TMA III and TMA IV), the IDR portal was closed for new and existing batched disputes on August 3, 2023, and new or existing air ambulance disputes on August 24, 2023. While the portal reopened for certain disputes on October 6, 2023, it remained closed to batched disputes and disputes relating to air ambulance services. 

The reopening came the same week that the Government Accountability Office (GAO) released its report on implementation of the NSA and the (IDR) process. The report highlighted a fractured regulatory enforcement framework, with compliance divided between the Centers for Medicare and Medicaid Services, the Department of Labor, and state officials depending on the health plan type. It also summarized the many problems both healthcare providers and payors have had with the IDR process, from inconsistent decisions to unanswered complaints to unpaid awards. While the Departments anticipated about 22,000 disputes in 2022, it received nearly 490,000 through June 2023, with only 38.6 percent closed. It is anticipated that the full reopening of the portal will add to the backlog. 

The NSA was enacted as part of the Consolidated Appropriations Act, 2021, and took effect on January 1, 2022. Congress passed the NSA to protect patients covered by group and individual health plans from surprise medical bills. It created the IDR process to resolve payment disputes between payors and providers of emergency services. 

The Departments also announced extensions of IDR deadlines for new batched disputes and new single disputes involving air ambulance services, resubmission of disputes determined by certified IDR entities to be improperly batched, and selection or reselection of a certified IDR entity. More specifically, the extensions include:

• Parties for whom the IDR initiation deadline under applicable regulations fell on any date between August 3, 2023 and December 15, 2023 will have until the 20th business day after the Federal IDR portal reopens, which is January 16, 2024, to initiate a new batched dispute or a new single dispute involving air ambulance services. Parties for whom the IDR initiation deadline falls between December 16, 2023 and January 15, 2024 will also have until January 16, 2024 to initiate a batched or air ambulance dispute. Parties whose initiation deadline falls on January 16, 2024 or after will have the usual 4 business days after the end of the Open Negotiation Period, or if the dispute is subject to the 90-calendar-day suspension period following a payment determination, the usual 30 business day period, to initiate a batched or air ambulance dispute in the Federal IDR portal.
• For batched disputes and single disputes involving air ambulance services initiated under extensions of deadlines after the Federal IDR portal reopens, the deadline for the parties to jointly select a certified IDR entity will be 10 business days after initiation.
• For disputing parties that were engaged in certified IDR entity selection for batched disputes when the Federal IDR portal temporarily closed, the deadline for parties to jointly select a certified IDR entity will be 10 business days after the Federal IDR portal reopens, which is December 29, 2023.
• An initiating party that has received a notification from a certified IDR entity that a dispute initiated before August 3, 2023 was improperly batched will have one opportunity to resubmit the improperly batched items and services for reconsideration within 10 business days of being notified by the certified IDR entity, provided that the initiating party’s 4-business-day period to resubmit the batched dispute expired between August 3 and August 9, 2023.
• The deadline to submit fees and offers will remain 10 business days after certified IDR entity selection.
• Disputing parties with batched disputes that were impacted by the temporary suspension of use of the notice of offer form will be granted an additional 10 business days to submit offers, as communicated to impacted disputing parties by email from the Federal IDR Inbox.

Please do not hesitate to reach out to our team at Norton Rose Fulbright with questions related to the Departments' guidance or any other No Surprises Act questions.