American providers remain in reimbursement limbo during IDR failure

HFMA and its member healthcare providers are growing more concerned over the extended delay of reimbursement from group health plans subject to the unresolved No Surprises Act IDR regulations and guidance. HFMA members continue to report that numerous health plans persist in determining very low rates for calculating the Quality Performance Assessment (QPA) they are obligated to pay healthcare providers for delivering critical care to their policyholders. Frequently, providers have voiced concerns that the reimbursement rates being computed fall below those of even Medicare.

Moreover, there have been instances where some payers seem to employ what are colloquially referred to as “ghost rates” in their calculations. Ghost rates pertain to situations in which a provider and a plan possess a contractual dollar value for a service; however, the provider does not offer the service in question and thus does not engage in negotiations concerning the amount. Consequently, the rate may either be $0 or unrealistically low for the service since the reimbursement amount is essentially irrelevant.

The U.S. District Court for the Eastern District of Texas issued an opinion and order on August 24, 2023, in the case of Texas Medical Association, et al. v. United States Department of Health and Human Services, Case No. 6:22-cv-450-JDK (TMA III). This ruling led to the vacation of specific sections of various federal regulations, including:

• 86 Fed. Reg. 36,872
• 45 C.F.R. § 149.130, 149.140
• 26 C.F.R. § 54.9816-6T, 54.9817-1T
• 29 C.F.R. § 2590.716-6
• 5 C.F.R. § 890.114(a)

Additionally, certain portions of various guidance documents were also impacted.

This week, the ongoing dispute over the flawed processes of the No Surprises Act at the Ways and Means Hearing has brought up several critical issues, including concerns about QPA calculations and disclosures, excessive administration fees, bundling and batching of claims, lack of payer engagement in open negotiations and delayed payments. HFMA fears that these complexities will only further complicate CMS’s efforts to rectify the provisions and guidance of the failed No Surprises Act in a timely manner.

Suspension to the IDR process

In light of the TMA III decision, the departments have suspended all operations related to the Federal Independent Dispute Resolution (IDR) process as of August 24. This suspension remains in effect until the departments can furnish additional guidance, leaving healthcare providers in a state of uncertainty when it comes to resolving underpayments. This situation presents a significant challenge for hospitals, especially considering that many are currently contending with negative operating margins due to inflation, escalating workforce wages and rising supply costs. As well, patients are increasingly worried about whether their community hospitals and healthcare providers will be able to sustain their operations and continue providing essential medical care amidst this substantial disruption in reimbursement from the insurance plans they have chosen to support their healthcare needs.

HFMA guidance

HFMA encourages hospitals and healthcare providers to proactively engage with their state representatives and departments of insurance to seek assistance in guiding group health plan insurers operating within their state to participate in the open negotiation process, while CMS works through the correction of their guidance documents related to the NSA and IDR processes. This collaboration is essential for addressing underpayments, claim denials and timely resolution of No Surprises Act (NSA) claims, ultimately ensuring vital payments to providers who are providing important medical care to their respective communities.