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Finally, More Certainty and Fewer Surprises – Final Rules Issued Under the No Surprises Act

By Kirk S. Davis & Danielle C. Gordet on September 16, 2022
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The Departments of the Treasury, Labor, and Health and Human Services (the Departments) issued final rules related to the No Surprises Act on August 26, 2022, to be effective October 25, 2022 (Final Rules).  These Final Rules come after months of uncertainty and legal battles regarding the Federal Independent Dispute Resolution (IDR) process, as we have discussed in recent blogs.

The Final Rules provide some certainty for providers and facilities (collectively, Providers) who were left wondering how the IDR process would move forward given the pushback it had received from the courts. The qualifying payment amount (QPA) is no longer the presumptive factor in payment determinations.  The Final Rules now make clear that “certified IDR entities should [instead] select the offer that best represents the value of the item or service under dispute after considering the QPA and all permissible information submitted by the parties.”

To make this determination, the certified IDR entity is required to evaluate whether information that is offered is credible. The permissible information which may be considered by certified IDR entities includes, but is not limited to, information related to the following factors:

  • The level of training, experience, and quality and outcomes measurements of the Provider that furnished the qualified IDR item or service;
  • The acuity of the beneficiary receiving the qualified IDR item or service, or the complexity of furnishing the qualified IDR item or service to the beneficiary;
  • The demonstration of good faith efforts (or lack thereof) made by the Provider or the plan to enter into network agreements with each other, and, if applicable, contracted rates between the Provider, as applicable, and the plan, as applicable, during the previous 4 plan years; and
  • The information related to the offer provided in response to a request from the certified IDR entity.

The following additional factors may be considered for services other than air ambulance services:

  • The market share held by the Provider or that of the plan in the geographic region in which the qualified IDR item or service was provided; and
  • If the Provider is a facility, the teaching status, case mix, and scope of services of the facility that furnished the qualified IDR item or service.

The following additional factors may be considered for air ambulance services:

  • The acuity of the condition of the beneficiary receiving the service, or the complexity of furnishing the service to the beneficiary;
  • Ambulance vehicle type, including the clinical capability level of the vehicle; and
  • Population density of the point of pick-up.

The Final Rules emphasize that when considering the additional information provided by the parties, the certified IDR entity should ensure it does not give additional weight to information that is already considered as part of other information submitted by the parties.  This is intended to avoid  double-counting the same information, thereby assigning it greater weight.

The Departments released a status update indicating that between April 15, 2022 and August 11, 2022, over 46,000 disputes were initiated through the federal IDR portal. However, fewer than 3% of these disputes resulted in payment determinations by certified IDR entities. While approximately 15% of the disputes were deemed ineligible for the federal IDR process, the remaining eligible disputes should benefit from the certainty afforded by the Final Rule.

We are available to assist parties seeking guidance regarding adhering to the No Surprises Act as these changes continue to develop.

Photo of Kirk S. Davis Kirk S. Davis

An accomplished litigator, Kirk Davis represents hospitals and health systems in complex regulatory compliance issues and disputes with a focus on medical malpractice and peer review hearings. Kirk has decades of experience in the peer review process and has been involved in all…

An accomplished litigator, Kirk Davis represents hospitals and health systems in complex regulatory compliance issues and disputes with a focus on medical malpractice and peer review hearings. Kirk has decades of experience in the peer review process and has been involved in all aspects of hearings, from prosecuting physicians to defending medical staff and serving as a hearing officer. He helps hospitals comply with federal and state laws by recommending peer review best practices and procedures. In addition to his work on medical malpractice matters, Kirk handles disputes between physicians in private practices and effectively resolves contentious medical practice dissolution through alternative dispute resolution. Kirk has served as an arbitrator in various healthcare-related matters and is a sought after speaker on health law topics. He is Board Certified in Health Law by The Florida Bar and recognized by Chambers USA as a leading lawyer in healthcare.

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Photo of Danielle C. Gordet Danielle C. Gordet

Danielle Gordet focuses her practice on healthcare, including healthcare compliance, conflicts of interest, scope of practice issues, physician contracting, and regulations. Her ability to identify, investigate, and resolve complex issues in collaboration with healthcare administrators allows her to provide them with effective counsel…

Danielle Gordet focuses her practice on healthcare, including healthcare compliance, conflicts of interest, scope of practice issues, physician contracting, and regulations. Her ability to identify, investigate, and resolve complex issues in collaboration with healthcare administrators allows her to provide them with effective counsel in developing policies and procedures which reduce the risk of inappropriate conduct and prevent non-compliance. She provides expertise on federal and state healthcare statutory and regulatory issues, including adherence to the Stark Law, the Anti-Kickback Statute, and licensure compliance. In addition, Danielle assists manufacturers of U.S. Food and Drug Administration (FDA) regulated products in obtaining necessary FDA clearances for their devices. Danielle works with healthcare administrators on resolving a variety of legal matters, including issues surrounding hospital bylaws, licensure and credentialing, telemedicine, codes of conduct, and Emergency Medical Treatment and Labor Act. On behalf of healthcare providers, she negotiates and drafts contractual agreements including medical directorships, physician employment, clinical trials, and consulting arrangements.

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  • Posted in:
    Health Care and Life Sciences
  • Blog:
    Health Law Rx
  • Organization:
    Akerman LLP
  • Article: View Original Source

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