In response to the Court’s decision on TMA 3 on August 24, 2023, the administration released an FAQ on October 6, 2023 that provides some guidance on how to handle QPA calculations. The administration confirmed this FAQ is the only interim guidance it intends to release in relation to the decision, and announced its intent to appeal TMA 3.
The administration reopens the Portal
Additionally, the administration reopened the IDR portal for additional new disputes, effective October 6, 2023. As you may recall, parts of the Federal IDR process were temporarily suspended in response to opinions on TMA4 on August 3, 2023 and TMA3 on August 24, 2023.
The administration is now allowing new disputes with statutory deadlines between August 3 and November 2 to be submitted until November 5, 2023. For disputes initiated between October 6 and November 5, some IDRE timelines will be extended as follows:
- The IDRE selection deadline will be 10 business days from initiation
- The fee submission deadline will be 10 business days from IDRE selection
IDR disputes that were in the IDRE selection process when the portal process was suspended have 10 business days from October 6 to select an IDRE.
Guidance in the FAQ
The administration is still not processing in-progress or new batched disputes, or new air ambulance disputes. The FAQ released today provides some guidance on those items:
- Good Faith, Reasonable Interpretation. Where specific guidance is not provided, the administration requires plans to calculate QPA consistently with the regulations as revised by TMA 3, using a good faith, reasonable interpretation.
- Assistance to Comply. The administration notes the considerable, unanticipated burdens placed on plans that may need to recalculate QPAs after TMA 3, and intends to work with plans to assist with compliance efforts if plans are working “diligently and in good faith to recalculate QPAs.”
- Enforcement Discretion for QPA and Cost Sharing. Because plans will need time to revise and recalculate their QPAs in accordance with the TMA 3 decision, the administration will not pursue enforcement against plans that must use QPAs calculated under the pre-TMA 3 rules out of practical necessity as they work to update their QPA calculations. This enforcement discretion will apply for items and services for six months from the date of the decision. This enforcement discretion will end May 1, 2024.
- Disclosures Regarding QPA Calculation. Plans must still provide the required information to providers about their calculation of QPA. This guidance allows plans to confirm the QPA was determined in compliance with the regulations “where QPA was calculated using a good faith, reasonable interpretation” of the post-TMA 3 requirements. The enforcement discretion described above will also apply to this disclosure obligation for the same period of time.
- IDRE Consideration of QPA. This guidance allows IDREs to request and consider additional information related to the submitted QPA, to the extent this information doesn’t include factors or information that IDREs are prohibited from considering.
- 30 Calendar Day Timeline for Initial Payment/Denial for Air Ambulance Claims Only. Under the TMA 3 decision, plans may not use receipt of a clean claim as the starting point for their 30 calendar day timeline to issue an initial payment or denial for air ambulance claims subject to the NSA. The administration expects plans to “make reasonable efforts to determine coverage and provide initial payments or notices of denial” within the 30 calendar day timeline, as measured from the receipt of an air ambulance claim, regardless of whether it includes enough information for the plan to make a determination.
The guidance declares: “If a plan or issuer cannot determine coverage in that timeframe, the plan or issuer should issue a notice of benefit denial due to an adverse benefit determination… and should communicate the basis for the denial in a manner that does not incorrectly suggest that the furnished service has been determined not to be a covered service.” The guidance prohibits air ambulance providers from balance billing individuals “unless and until the services are determined to not be covered services,” and reminds air ambulance providers that the administration has the right to impose monetary penalties for NSA violations.
Claritev will continue to keep you updated as more news relating to the NSA breaks.
