The Department of Health and Human Services (HHS), Department of Labor, and Department of the Treasury (collectively, “the departments”) recently confirmed that they will hold firm to the March 14, 2024 extended deadlines for initiating both new and previously initiated batched disputes or single disputes involving air ambulance services in the No Surprises Act Independent Dispute Resolution (IDR) portal.

The extension came about when the departments reopened the portal for all dispute types on December 15, 2023 following four months where the departments suspended new initiations of disputes because of court rulings vacating the departments rules and guidance in part. New single and bundled disputes were reopened on October 6, 2023. However, because the departments had more work to do to conform guidance to the court rulings on both batched and air ambulance claims, they left those suspended until December.

The deadline applies to any party submitting a batched or single air ambulance dispute for whom the IDR initiation deadline fell on any date between August 3, 2023 and December 14, 2023. However, the departments clarified that, as of March 14, 2024, initiating parties who submitted a batched dispute before August 3, 2023, and received notification from a certified IDR entity that the dispute was improperly batched will have the standard 4-business-day period to resubmit, instead of the existing 10 business day time period that was previously mentioned in a guidance document.

IDR Process has seen multiple litigation stops

The No Surprises IDR portal went live in February 28, 2022 only five days after a federal court in Texas invalidated portions of the interim final rule that established the IDR process. That court decision, a subject of an earlier blog post, vacated provisions of the rule that centered around the presumption in favor of IDR using a statutorily defined amount known in the original rule as the qualifying payment amount (“QPA”).

In July 2022 a different court decision vacated a section of the rule governing the use of the QPA that directly applied to air ambulance disputes. The departments responded by instructing certified IDR entities not to apply the vacated standard in any dispute related to air ambulance services.

The departments then issued a new final rule in August 2022 that sought to rectify the problems with the QPA provisions. Six months later, in February 2023, the same federal district court that vacated the rule in the first instance again vacated provisions of the rule. (We blogged about that decision too). The departments halted all IDR efforts for determinations issued on or after Feb. 3, 2023. However, it allowed the IDR entities to process any disputes for items or services furnished before October 25, 2022 since those were not impacted by the new court order.

By March 17, 2023, the departments had completed what they believed to be all of the necessary updates to the IDR portal and process guidance documents to bring them into compliance with the court rules. As a result, they instructed IDR entities to once again begin processing all determinations for disputes on or after October 25, 2022.

But, in August 2023, the same federal district court again vacated provisions of the rule and the guidance documents in two opinions issued three weeks apart. The first, issued on August 3, 2023 vacated the batching provisions of the rule and the $350 per party administrative fee guidance. The second ruling, issued August 25, 2023, vacated provisions relating to how to calculate the QPA.

The departments allowed single and bundled disputes submitted on or before August 3, 2023 to continue to be process, but suspended all batched dispute submissions. By October 2023, the departments had reopened the portal for new single and bundled dispute submissions but kept batched and single air ambulance disputes suspended as they worked to align their guidance to the court’s directives.

By December 2023, the departments finally reopened the portal for batched and air ambulance submissions. However, given the significant backlog of batched and air ambulance disputes that parties were unable to submit during the litigation stops, the departments granted a extension for the submission deadlines to March 14, 2024.

Reed Smith will continue to follow developments on the No Surprises Act and the IDR process. If you have any questions. Don’t hesitate to reach out to the health care lawyers at Reed Smith.