As we recently reported, on February 6, 2023, Judge Kernodle of the United States District Court for the Eastern District of Texas issued a decision in Texas Medical Association v. U.S. Dep’t of H.H.S., Case No. 6:22-cv-372 vacating certain portions of the regulations governing the dispute resolution process governing reimbursement disputes under the No Surprises Act (“NSA”). On February 10, 2023, in response to this decision, CMS issued a notice advising that “the Departments are in the process of evaluating and updating Federal IDR process guidance, systems, and related documents to make them consistent with the TMA II decision.” As a result, IDR entities have been instructed, effectively immediately, that they “should not issue new payment determinations until receiving further guidance from the Departments.” In addition, the IDR entities have been instructed to “recall any payment determinations issued after February 6, 2023.” (Emphasis in original). That said, CMS explained that “IDR entities should continue working through other parts of the IDR process as they wait for additional direction from the Departments.”
We will be watching for additional guidance from the Departments, but at a minimum, this significant decision by CMS will delay payment determinations for NSA disputes that have already been submitted to the IDR process. In addition, it is likely to result in further backlogs as additional new disputes are submitted.