No Surprises Act

Background
On August 3, 2023, the U.S. District Court for the Eastern District of Texas issued an opinion and order in Texas Medical Association, et al. v. U.S. Department of Health and Human Services, et al., Case No. 6:23-cv-59-JDK (TMA IV). This order vacated, among other provisions, the batching provisions established under the Requirements Related to Surprise Billing; Part II (October 2021 interim final rules) codified at 26 CFR 54.9816-8T(c)(3)(i)(C), 29 CFR 2590.716-8(c)(3)(i)(C), and 45 CFR 149.510(c)(3)(i)(C), which required that items and services batched in one independent dispute resolution (IDR) dispute be billed under the same service code or a comparable code under a different procedural code system.

On September 26, 2023, the Departments of Treasury, Labor, and Health and Human Services (collectively the “Departments”) published the Federal Independent Dispute Resolution (IDR) Process Administrative Fee and Certified IDR Entity Fee Ranges proposed rule, which stated that since the TMA IV opinion and order vacated 26 CFR 54.9816-8T(c)(3)(i)(C), 29 CFR 2590.716-8(c)(3)(i)(C), and 45 CFR 149.510(c)(3)(i)(C), which established standards for determining when multiple items or services relate to “the treatment of a similar condition” for the purpose of batched disputes, the certified IDR entities may no longer rely on the regulatory guidance provided to assist certified IDR entities when reviewing batched disputes. Certified IDR entities must now rely upon only statutory language when determining whether multiple items or services are related to the treatment of a similar condition and are therefore appropriate to batch.

The Departments’ Proposed Batching Rules
On October 27, 2023, the Departments released the No Surprises Act Independent Dispute Resolution Process Proposed Rule Fact Sheet. The fact sheet explains a number of the proposals contained in the Departments’ October 27, 2023 Federal Independent Dispute Resolution (IDR) Operations proposed rule (published on November 3, 2023), including new batching provisions addressing when qualified IDR items and services relate to treatment of a similar condition as well as encourage efficiency and minimize cost. Specifically, the Departments proposed to allow the following qualified IDR items and services to be batched:

1. items and services furnished to a single patient on one or more consecutive dates of service and billed on the same claim form (a single patient encounter);
2. items and services billed under the same service code or a comparable code under a different procedural code system; and
3. anesthesiology, radiology, pathology, and laboratory items and services billed under service codes belonging to the same Category I CPT code section, as specified in guidance by the Departments, in order to address the unique circumstances of these medical specialties and provider types.

The Departments also proposed to limit batched determinations to 25 qualified IDR items and services (or “line items”) in a single dispute to ensure certified IDR entities can make timely eligibility and payment determinations.

FHAS’s Batching Rules
Until the Departments adopt a final rule governing batching, certified IDREs must determine which items and services are considered “related to the treatment of a similar condition.” FHAS’s batching rules align closely with those proposed by the Departments on October 27, 2023.

FHAS has implemented the following criteria for batching claims:

1. The items and services are furnished by the same provider or facility;
2. Payment for the items and services are made by the same group health plan or health insurance issuer;
3. Items and services were furnished during the 30-day period following the date on which the first item or service included in the batched determination was furnished, and
4. Such items and services are related to the treatment of a similar condition;

Unlimited Line Items: For all batching, FHAS will allow an unlimited number of line items meeting the batching criteria.

IDRE Fee. The FHAS IDRE fee as previously published is based upon line-item tiers. The parties are advised to properly calculate the fee in order to issue the correct payment amount to FHAS, which is required for FHAS to arbitrate a case.

Below are FHAS’s interpretations of the statutory language regarding items or services that are related to the treatment of a similar condition and are therefore appropriate to batch. Note that items and/or services must meet only one – not all three – of the following:

1. Single Patient Encounter Batching

Along with three aforementioned criteria, batched items and/or services must be performed within the same patient encounter. A patient encounter is defined by CMS as “the set of services provided to treat a clinical condition or procedure.” Therefore, any item or service that meets the criteria listed above, as well as being within the same set of services provided to treat a clinical condition or procedure would be eligible for batching.

2. Identical Service Codes

Along with three aforementioned criteria, batched items and/or services must have identical service codes. Identical service codes relate to items and services billed under the same service code or a comparable code under a different procedural code system.

3. Category I CPT code section

Along with three aforementioned criteria, batched items and services must be billed under service codes belonging to the same Category I CPT code section, as specified in guidance by the Departments, for radiology, pathology & labs, and anesthesiology. The Category I CPT code sections for batching are included in Table 2 below.