News & Thought Leadership from Sulloway & Hollis

Final rule updates the arbitration process of the No Surprises Act

The US Departments of Labor, Health and Human Services (HHS) and the Treasury recently issued “Requirements Related to Surprise Billing: Final Rules” (the “Final Rules”). The Final Rules update the dispute resolution process providers and insurers will use to settle out-of-network billing disputes for the No Surprises Act (NSA). For an overview of the No Surprises Act, see our earlier summary of this law.

The new Final Rules clarify the implementation of the Independent Dispute Resolution (IDR) process that determines out-of-network rate services after talks between payers and providers break down. A new fact sheet and a status update on the IDR process were also released. Officials also updated a new series of frequently asked questions on a wide range of NSA topics.

The Final Rules pivot from the Interim Rule issued in October 2021 and eliminate the requirement that arbitrators give more weight to the out-of-network rate, including the Qualified Payment Amount (QPA), over other permissible factors. The QPA is the average of the plan or insurer’s contracted rates for the item or service in that geographic region.

The Final Rules focus on the process IDR entities should use when choosing between competing offers. For items or services under dispute, the rule directs the entities to:

• Select the offer that best represents the value of the item or service.
  • When determining which offer best represents this value, entities must consider the QPA and any additional information submitted by a party or requested by the entity.
  • Additional information must be:
    • Related to a party’s offer
    • Deemed credible by the IDR entity
    • Not already included in other information that’s before the IDR entity.

The Final Rules address one of the providers’ main concerns – the directed use of the QPA in the dispute resolution process favored health plans and insurers. The Final Rules also codify provisions of the October 2021 Interim rules requiring certified IDR entities to explain their payment determinations and underlying rationale in a written decision submitted to the parties and the Department of Labor and HHS. The departments will continue gathering data and issue future rules as warranted.

The Health Care team and Sulloway & Hollis will continue to monitor developments in the No Surprises Act and provide updates as guidelines are released.