No Surprises Act Update: IDR Entities May Resume Issuing All Payment Determinations

March 21, 2023

As of March 17, 2023, IDR entities may resume issuing all payment determinations for NSA disputes.

On February 10, 2023, The Centers for Medicare and Medicaid released a statement that certified IDR entities (IDREs) should hold all payment determinations for NSA disputes in progress until further guidance was issued. These instructions were in response to a February 6, 2023 ruling from the U.S. District Court for the Eastern District of Texas on the second Texas Medical Association lawsuit (TMA II) challenging how QPA must be considered by IDR entities.

The hold on payment determinations was lifted in two phases. First, on February 24, CMS issued a new directive allowing IDREs to resume making payment determinations for disputes involving items or services furnished before October 25, 2022.  Then on March 17, they said IDR entities could resume issuing payment determinations for disputes after October 25, 2022.

The reason they separated disputes before and after October 25, 2022 is because the TMA II ruling impacts only those disputes on items provided on or after October 25, 2022, which is the effective date for the August, 2022 Final Rule. Disputes that occurred prior to October 25, 2022 are governed by the October, 2021 interim final rule, which was revised by the court in the first TMA and LifeNet lawsuits (TMA I and LifeNet I).

CMS’s updated guidance for payment determinations on disputes over items and services for disputing parties can be found here, and updated guidance for IDREs can be found here.