On November 28, 2023, the Departments of Health and Human Services, Labor, and the Treasury (the Departments) issued two sets of FAQs on aspects of the No Surprises Act (NSA) Independent Dispute Resolution Process (IDR Process). The guidance largely focused on batching in response to two judgments issued by the United States District Court for the Eastern District of Texas that vacated the Departments’ prior rulemaking on the same topic earlier this year. The Departments clarified that the language of the NSA and non-vacated guidance will govern the disputes until the Departments issue new rulemaking through notice and comment.

The Departments’ prior rulemaking on batching in the IDR Process was issued as an interim final rule in October 2021 (October Interim Final Rule). The Departments also issued informal “technical guidance” in August 2022 providing additional rules regarding batching, particularly for air ambulance disputes (August Technical Guidance). In August 2023, the Eastern District of Texas issued two opinions vacating aspects of the October Interim Final Rule and August Technical Guidance. Specifically, the Court vacated guidance that required IDR items and services to be billed under the same service code or a comparable code under a different procedural code system (such as CPT code, HCPCS, or DRG codes with modifiers) to be batched. The Court also vacated guidance that required single air ambulance transports to be brought as two separate disputes.

The FAQs clarified that the Departments will be issuing updated rulemaking and will use the formal notice and comment process. Until the new rulemaking can be finalized, the Departments stated that the guidance left in effect and the language of the NSA will govern the batching of disputes eligible for the IDR Process on or after August 3, 2023. The NSA merely states that the items or services may be considered jointly as part of a single determination only if they are “related to the treatment of a similar condition.” The Departments did not expand on what that phrase means, but instead explained that the IDR entities have the sole responsibility for determining whether a batched dispute meets the remaining regulatory and statutory standards.

The federal IDR portal is still closed for batched and air ambulance disputes, but the Departments expressed an intent to reopen these aspects of the portal “as soon as possible.” When the federal IDR portal reopens to all batched disputes and single disputes involving air ambulance services, the Departments will grant extensions to the applicable IDR deadlines for the initiation of new batched disputes and new disputes involving air ambulance services, resubmission of disputes determined by certified IDR entities to be improperly batched, and selection or reselection of a certified IDR entity.

The two FAQ documents are available here and here.