For healthcare providers and payers working with Independent Dispute Resolution Entities (IDREs) under the No Surprises Act, ensuring a fair playing field beyond reproach is paramount. To maintain the integrity and independence of arbitration, IDREs, providers, and payers must clearly comply with NSA guidelines to steer clear of conflicts of interest.
However, the rules for preventing such conflicts encompass various types of conflicts that may not always be immediately recognizable by the involved parties. From financial entanglements to professional relationships and beyond, the potential for conflicts is multifaceted, requiring vigilance from all sides.
The federal guidance on Independent Dispute Resolution Entities (IDREs) avoiding Conflict of Interest (COI) can be summarized as the following:
- The IDR entity itself cannot be a group health plan, health insurer, federal employee health plan carrier, healthcare provider, facility, or air ambulance provider.
- The IDR entity cannot operate as an affiliate or subsidiary of any of the types of organizations in #1.
- The IDR entity cannot be affiliated with or a subsidiary of a professional/trade association representing the organizations in #1.
- The IDR entity cannot have personnel, contractors, or subcontractors assigned to the case who have material relationships with either the health plan/insurer or the provider/facility that is party to the dispute.
The term “material relationship” is used in defining conflicts of interest for IDREs, but what constitutes a material relationship is not explicitly defined. A material relationship typically refers to one that is considered significant enough to potentially influence judgment or decision-making.
Examples of material relationships include:
- Financial ties: Direct compensation, ownership interests, and investment relationships between the IDR entity and the parties in dispute.
- Close personal/familial ties: Immediate family members, spouses/domestic partners, or close friendships between IDR personnel and the conflicting parties.
- Recent prior employment/business relationships: IDR personnel having recently left employment or an advisory role with one of the parties within a certain timeframe (e.g., 1-2 years).
- Professional society/association leadership positions: IDR entity leadership holds positions in the same professional associations as the parties in dispute.
Key Takeaway
The abundance of caution in avoiding any relationship between the IDR entity and the disputing parties is leading to a lack of communication regarding what would be considered a material relationship.
Parties should clearly review the rules to ensure their chosen IDRE is conflict-free; parties should ensure their chosen IDRE does not have any affiliations or ownership interests mingled with providers or health plan issuers.
How FHAS Prevents COI
For this reason, FHAS maintains a proven Compliance and Conflicts of Interest Program, which requires all staff to report any potential conflicts by completing COI forms periodically with the FHAS compliance team. Further, FHAS trains staff on how to determine conflicts of interest, what to look for, and how to recognize potential conflicts of interest.
As an example: through the FHAS Conflict of Interest reporting program, FHAS avoids using arbitrators and IDR staff that have any professional, financial, or familial ties with provider groups or health plan issuers. FHAS will not use any staff or arbitrators that may potentially give rise to a conflict in order to preserve the integrity of the IDR program. IDR requires a foundation of fairness and neutrality, which are the collective keystones of FHAS.
The full guidance defining COI from CMS can be found here: Federal-IDR-Guidance-Disputing-Parties-March-2023.pdf
