No Surprises Act: New FAQs shed light on IDR batching and air ambulance disputes

In two sets of newly released frequently asked questions (FAQs), the US Departments of Health and Human Services, Labor and Treasury (collectively, the Departments) clarify open questions in the wake of August 2023 decisions by the US District Court for the Eastern District of Texas (TMA III and TMA IV) and provide guidance in advance of the federal Independent Dispute Resolution (IDR) portal reopening for batched disputes and air ambulance disputes under the No Surprises Act. In a separate statement, the Departments also announced an extension of the certified IDR entity selection timeline.

The Federal IDR Process Batching and Air Ambulance FAQs (Nov. 28, 2023)

IDR entities do not need to reconsider disputes determined to be properly batched prior to August 3, 2023, according to the Federal IDR Process Batching and Air Ambulance FAQs. However, if an IDR entity is addressing a dispute where IDR was initiated prior to August 3, 2023, and either (1) an eligibility determination had not been made, or (2) a determination was made but had not been communicated to the parties prior to August 3, 2023, then the dispute should be reevaluated based on the guidance provided in the FAQs Part 63 (discussed below). The IDR FAQs also outline the process for disputes determined eligible for the IDR process but improperly batched prior to August 3, 2023 (including deadlines for resubmission) and disputes filed after the August 3, 2023, court opinion in TMA III and TMA IV.

FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 63 (Nov. 28, 2023)

The FAQs About ACA and CAA, 2021 Implementation Part 63 (FAQs Part 63) address the batching requirements in response to the No Surprises Act opinions in TMA III and TMA IV. To that end, items and services may be considered jointly, or batched together, if they are "related to the treatment of a similar condition." The Departments acknowledge that "related to the treatment of a similar condition" will need to engage in notice and comment rulemaking related to this standard, as this is not defined in the statute. In the case of air ambulance services, the Departments state that "air ambulance services for a single air ambulance transport, including an air ambulance mileage code and base rate code, may be submitted as a batched dispute, so long as all provisions of the batching regulations are satisfied…" Still, the guidance notes that this does not preclude an air ambulance mileage code or base rate code from being submitted as an individual dispute.

Extension of certified IDR entity selection timeline (Nov. 29, 2023)

Due to IDR entities and disputing parties reporting difficulty meeting times to initiate new disputes via the federal IDR portal "given the large volume of disputes initiated following the October 6, 2023, portal reopening," disputing parties will have ten (10) business days to select a certified IDR entity. This is applicable to all disputes through January 16, 2024 and will be automatically provided. 

Parties with pending No Surprises Act disputes or active IDR disputes put on hold due to TMA III and TMA IV should prepare for the impending reopening of the federal IDR portal. 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.