On Friday, February 10, 2023, the Centers for Medicare and Medicaid Services (“CMS”) suspended the No Surprises Act (“NSA”) independent dispute resolution (“IDR”) process indefinitely, following the decision of a District Court in Texas that struck down parts of the No Surprises Act final rules related to the IDR process.
In the Notice announcing the suspension, CMS cited the Texas court decision, which was the second court decision in six months rejecting the IDR regulations, and advised, “Effective immediately, certified IDR entities should not issue new payment determinations until receiving further guidance from the Departments.”
Implications for Providers
The Texas decision and CMS’s reaction immediately create even more confusion and uncertainty in a process that has already been plagued by paralyzing backlogs, months-long delays and frequent rejection of disputes by IDR entities. In particular, the initial Notice from CMS, directed to IDR entities, does not provide clear guidance to providers who are required to use the IDR process to address disputes arising in situations covered by the NSA. For example, the NSA contains several significant deadline provisions, and it is unclear if these deadlines remain in full force during the suspension. The Notice suggests that the answer is yes, advising, “Certified IDR entities should continue working through other parts of the IDR process as they wait for additional direction from the Departments,” but again, this guidance is directed to the IDR entities – it does not clearly address how providers should proceed. In addition, CMS has not specified what “other parts” of the IDR process IDR entities should continue to “work through.”
The situation is obviously changing rapidly and, at this point, next steps for providers are unclear. The No Surprises Group at Garfunkel Wild is monitoring the status of these and other questions closely and anticipates additional guidance from regulators in the coming days or weeks. Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected]