CMS Resumes Independent Payment Resolution Under ‘No Surprises Act’

Payment arbitration under the No Surprises Act has resumed after a February halt by the Centers for Medicare & Medicaid Services. CMS said it has updated guidance for the independent dispute resolution process after a court ruling in Texas in February.

Since the law’s passage, the Texas Medical Association has twice challenged the ways CMS tried to implement the law. Both times, the courts sided with doctors. In the 2022 ruling (PDF), a federal judge said the rule put “a substantial thumb on the scale in favor of the [qualified payment amount]” — a figure insurers prefer.

In the latest case, the doctors group raised similar concerns about what CMS told arbitrators to consider in the dispute-resolution process. After the association won again, CMS paused all dispute resolutions for service dates on or after Oct. 25, 2022, until it could update the guidance.

The independent dispute resolution process applies in cases when providers and insurers cannot agree on a payment amount. CMS had initially directed arbitrators to view the qualifying payment amount, or median in-network rate, as appropriate.

The new guidance (PDF) directs arbiters to consider both the qualified payment amount and all other allowed information submitted. According to an American Medical Association analysis (PDF), CMS also removed two earlier statements that put more weight on the qualified payment amount.

In addition, CMS now requires arbiters to give more detailed information about the rationale for the decision. This includes:

• What evidence it relied on to choose the offer “that best represents the value” of the disputed service or item
• What weight it gave to the qualified payment amount vs. other information

In December, CMS also increased the dispute resolution fee (PDF) from $50 to $350.

In less than eight months, the agency said disputes had generated a “case load … nearly 10 times greater” than it expected for a full year. Cases also proved more complex than expected.

Providers who seek arbitration for a dispute will receive updates from auto-reply-federalidrquestions@cms.hhs.gov.