10-06-23 Update: TMA III & IV Ruling – How To Proceed

Portal is Reopened for Single/Bundled Non-Air Ambulance Disputes

Today, October 6^th, 2023, CMS sent the following update out to the parties:

Between 8/3/2023 and 10/5/2023, the Independent Dispute Resolution (IDR) Notice of Initiation, Selection Response, and Reselection Response web forms were unavailable to disputing parties due to the Texas Medical Association (TMA) III and TMA IV orders.^[1]

This evening, access to these web forms will be restored and disputing parties will be able to resume operations related to the IDR entity selection and re-selection process and initiate new disputes. Disputing parties have been advised to follow the guidance below when resuming operations related to existing disputes and when initiating new disputes.

Processing of in-progress batched disputes, new batched disputes, and new air ambulance disputes remain temporarily suspended while the Departments update batching and air ambulance guidance and operations to align with the TMA III court order.

Existing Disputes
When resuming operations related to disputes currently in the selection or re-selection process:

Effective 10/6/2023, disputing parties have 10 business days from 10/6/2023 to agree on a certified IDR entity. If disputing parties do not complete the selection process or fail to come to an agreement on a certified IDR entity by 10/20/2023, the Departments will either assign the last selected certified IDR entity or will randomly assign a certified IDR entity to your dispute, as applicable.

New Disputes
When initiating new disputes: 

• Parties for whom the IDR initiation deadline required by regulation falls on 8/3/2023 through 11/3/2023 will have until the 20^th business day after the Federal IDR portal reopens for new dispute processing, which is 11/3/2023, to initiate a new dispute.  
• For new disputes initiated between 10/6/2023 and 11/3/2023, the deadline for certified IDR entity selection will be 10 business days after initiation, and the deadline to submit fees and offers will remain 10 business days after certified IDR entity selection.
• Disputing parties will continue to have 10 business days after selection of a certified IDR entity to submit their offers and pay their fees.
• The TMA III order vacated certain provisions of the Requirements Related to Surprise Billing; Part I interim final rules (IFR 1) establishing the methodology for calculating the Qualifying Payment Amount (QPA). More information regarding the QPA in the Federal IDR Process in light of the TMA III order can be found here: https://www.cms.gov/files/document/faqs-part-62.pdf. The administrative fee for any new dispute (single or bundled) is $50.00.

Results of the Portal Reopening

Some parties are reporting that they have received hundreds, if not thousands of IDR selection responses this morning, sent to multiple providers with invalid disputes numbers. See below for example:

FHAS has made CMS aware of this issue and they are looking further into it. We are waiting on additional guidance from them, and once we receive it, you will be notified in a future Updated: TMA III & IV Ruling: How to Proceed email.

More Resources

Following the parties’ receipt of CMS’ email, FHAS attended a meeting with CMS(along with all other entities) to receive the official update of the portal reopening. In this meeting we received some useful FAQ’s:

October 2023 FAQs about Consolidated Appropriations Act, 2021 Implementation Part 62 (FAQs Part 62)

https://www.cms.gov/files/document/faqs-part-62.pdf

October 2023 Partial Reopening of Dispute Initiation Guidance FAQs

https://www.cms.gov/files/document/federal-idr-partial-reopening-faqs-oct-23.pdf

August 2023 Administrative Fee FAQs

https://www.cms.gov/files/document/idr-admin-fees-faqs-081123-508.pdf-0

There are no other updates at this time.

With all of this information entities and providers are limited to the following:

Most Recent Bundling Guidelines (as a reminder)

CMS defines a bundled payment as – …an arrangement under which a provider, facility, or provider of air ambulance services bills for multiple items or services under a single service code; or a plan makes an initial payment or notice of denial of payment to a provider, facility, or provider of air ambulance services under a single service code that represents multiple items or services (e.g., a DRG). Bundled payment arrangements are subject to the rules for batched determinations, but the certified IDR entity fee and administrative fee will be the same as for single determinations. (Federal Independent Dispute Resolution (IDR) Process Guidance for Certified IDR Entities (cms.gov))

Entities were also given the following guidance:

No Surprises Act, Regulations, and Guidance: The No Surprises Act (42 USC 300gg-111(c)(3)(B)) specifies that, “the Secretary shall provide that, in the case of items and services which are included by a provider or facility as part of a bundled payment, such items and services included in such bundled payment may be part of a single determination under this subsection.”

The Departments’ implementing regulations at 45 CFR 149.510(c)(3)(ii)1 further specify that a bundle can be based either on how the provider bills the items or services or how the payer reimburses the items or services, stating, “in the case of qualified IDR items and services billed by a provider, facility, or provider of air ambulance services as part of a bundled payment arrangement, or where a plan or issuer makes or denies an initial payment as a bundled payment, the qualified IDR items and services may be submitted as part of one payment determination.”

Finally, Departmental guidance to certified IDR entities further specifies that items and services will be treated as bundled if they are billed or paid for using a single service code for multiple items or services, stating, “a bundled arrangement is an arrangement under which a provider, facility, or provider of air ambulance services bills for multiple items or services under a single service code; or a plan makes an initial payment or notice of denial of payment to a provider, facility, or provider of air ambulance services under a single service code that represents multiple items or services (e.g., a DRG).”

Other Important Notes:

• If you did not make payment due to the IDR process being put on hold, do so as soon as possible to avoid an Admin Closure or Default Determination in the opposing party’s favor.
• CMS has not released official guidance on forthcoming batching guidelines.
• If you were affected by the inactive submit button FHAS will grant any remaining needed extensions by request if you did not receive one by CMS.
  • Reply to this email with dispute numbers and the reason for the extension request. Before requesting ensure the dispute is in an active status – as well as single/ bundled.
• The TMA III order vacated certain provisions of the regulation establishing the methodology for calculating the Qualifying Payment Amount (QPA). The Departments issued guidance on how to proceed with disputes following the court’s order,

[Payment disputes between providers and health plans | CMS]

FHAS will continue to update as we find out new information.

If there are any questions feel free to comment on this post, email IDRE@fhas.com or call FHAS at (570) 779-5122 and ask for our IDR department. Thank you.