The No Surprises Act was enacted by H.R. 133, “Consolidated Appropriations Act, 2021” and went into effect January 1, 2022. Among other things, the law establishes an IDR process to determine the payment rate for certain services when a health plan and out-of-network provider cannot agree on a payment rate. The Departments have undertaken several rulemakings implementing the provisions of the No Surprises Act.
Most recently, the Departments published the IDR Operations Proposed Rules on November 3, 2023, with comments originally due January 2, 2024, and the IDR Fees Final Rule on December 21, 2023. Some of the proposals in the IDR Operations Proposed Rules related to fees could be affected by the policies finalized in the IDR Fees Final Rule. In the IDR Operations Proposed Rules, the Departments made proposals regarding:
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Collecting the administrative fee directly from the parties to the dispute rather than having the certified IDR entities (which serve as the IDR adjudicators) collect the administrative fee on the Departments’ behalf;
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Required timeframes for the initiating and non-initiating parties to pay the administrative fee and consequences for non-payment for each party;
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Charging both parties a reduced administrative fee when the highest offer made during open negotiation by either party is less than a predetermined threshold; and
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The methodology inputs used to calculate the administrative fee amounts.
Because changes finalized in the IDR Fees Final Rule relate to proposals in the IDR Operations Proposed Rules, the Departments are reopening the comment period for the IDR Operations Proposed Rules to provide additional time for interested parties to consider and comment on any implications of the IDR Fees Final Rule for the proposals in the IDR Operations Proposed Rule related to IDR fees.
If you have any questions regarding the re-opened comment period, please contact any of the lawyers listed with this alert or the Hogan Lovells lawyer with whom you typically work.
Authored by Beth Roberts, Ken Choe, Victoria Wallace, and Xochitl Halaby
