12-15-23 Update: Batching & Air-Ambulance for TMA III & IV Ruling – How to Proceed

On December 15^th, 2023, CMS notified all IDREs and parties of the portal reopening for air-ambulance and batched disputes.

Due to the TMA IV court order on 8/3/2023 and the TMA III court order on 8/24/2023, the Federal Independent Dispute Resolution (IDR) portal and all IDR web forms were temporarily unavailable.

During the evening of 12/14/2023, the online Notice of Initiation, Certified IDR Entity Selection, Certified IDR Entity Reselection, and Notice of Offer web forms were reopened for batched disputes and disputes involving air ambulance services. It is critical disputing parties follow the guidance below to resume operations on 12/15/2023.  

Guidance for the Notice of Initiation process:

• On 12/15/2023, disputing parties may begin initiating batch disputes and disputes that involve air ambulance services.
• Parties for whom the IDR initiation deadline under applicable regulations fell on any date between 8/3/2023 and 12/15/2023 will have until the 20th business day after the Federal IDR portal reopens, which is 1/16/2024, to initiate a new batched dispute or a new single dispute involving air ambulance services.
• Parties for whom the IDR initiation deadline falls between 12/16/2023 and 1/15/2024 will also have until 1/16/2024 to initiate a batched or air ambulance dispute.
• Parties whose initiation deadline falls on 1/16/2024 or after will have the usual 4 business days after the end of the Open Negotiation Period, or if the dispute is subject to the 90-calendar-day suspension period following a payment determination, the usual 30 business day period, to initiate a batched or air ambulance dispute in the Federal IDR portal.

Guidance for the Certified IDR Entity Selection and Reselection Response process:

• Previously submitted batched disputes and disputes involving air ambulance services will continue through the certified IDR entity selection and reselection process.
• Previously submitted batched disputes will be granted 10 business days from 12/15/2023 for the certified IDR entity selection and reselection process.
• All newly initiated disputes will also have 10 business days to select 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 within 10 business days after they initiate IDR, the Departments will either assign the last selected certified IDR entity or will randomly assign a certified IDR entity to the dispute, as applicable.

Guidance for the Notice of Offer process:

• On 12/15/2023, disputing parties may resume the Notice of Offer processes for batched disputes that were initiated prior to 8/24/2023.
• Parties to disputes where the Notice of Offer due date was on or between 8/3/2023 to 8/18/2023 will have their Notice of Offer 10 business day due date window reset to 12/29/2023 for submission of offers if the party has not already submitted an offer. Parties that have already submitted offers will not receive additional time to re-submit their offers.

Disputing Parties Next Steps:

1.  Follow guidance and resume initiating disputes – Disputing parties may submit new batched disputes and disputes that involve air ambulance services.

2.  Resume operations related to the certified IDR entity selection and reselection process – Disputing parties will receive an email from the Federal IDR portal with the certified IDR entity selection or reselection form link for any batched dispute, where the certified IDR entity selection or reselection process was still in progress on or between 8/3/2023 to 8/11/2023. Important: This email will go to the party that was completing the certified IDR entity selection or reselection response form when the process was put on hold.

3.  Resume operations related to the Notice of Offer process – disputing parties may resume operations per the guidance outlined above. For disputes where the Notice of Offer due date was on or between 8/3/2023 to 8/18/2023, select the Notice of Offer link in the “Your IDR Notice of Offer Submission is Due” email sent from the Federal IDR portal after the initial creation of the dispute.

4.  The Departments announced the 11/22/2023 and 11/29/2023 extensions until 1/16/2024 for new single and bundled disputes. These extensions will persist for all disputes until 1/16/2024. Additional time to respond to certified IDR entity requests and extension of Notice of Offers must be pro-actively requested by parties, and additional time to pick a certified IDR entity will be automatically provided by the Departments without further action taken by parties. Visit cms.gov/nosurprises for more information about these previously announced extensions.

In light of these recent changes, FHAS is releasing our batching guidelines, (see attached) as well as FAQs published by CMS in order to educate providers and payors on changes made to the batching guidelines.

A couple of the most notable changes are as follows:

• As a result of the TMA III order, air ambulance services for a single air ambulance transport, including an air ambulance mileage code and base rate code, may be submitted as a batched dispute, so long as all provisions of the batching regulations are satisfied, in accordance with Q2 of these FAQs. Nothing in this guidance or the TMA III opinion and order precludes an air ambulance mileage code or base rate code from being submitted separately as a single dispute.
• The initiating party will have one opportunity to resubmit the improperly batched items and services for reconsideration within 10 business days of being notified by the certified IDR entity of the improper batching. If the items and services are not resubmitted by the 10-business-day deadline, or if they are resubmitted and are again determined to be improperly batched, the resubmitted dispute will be closed and ineligible for another resubmission.

There are no other updates at this time.

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

Entity Capabilities

– Able to resume the regular Notice of Offer request and payment determination processes for single/bundled and batched disputes. – Sending updated invoices and links for single/bundled and batched disputes. – Status Updates for single/bundled and batched disputes. Processing withdrawals for single/bundled and batched disputes. – Providing documents uploaded to the portal for single/bundled and batched disputes.

Entity Incapabilities

There are currently no entity incapabilities.

Provider Capabilities	– Initiating single/bundled disputes.Initiating batched disputes. – Initiating air-ambulance disputes; single or batched.
Provider Incapabilities	There are currently no provider incapabilities.

Other Important Notes:

• 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]

More Resources

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

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

If you have 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.