By Ed Marasco, MPM, CMTE, EMT-P (Ret.) *


Ambulance driving in a rural area

On Friday (10-27-23) CMS issued a press release and fact sheet outlining the key elements of the new proposed rule governing key aspects of the No Surprises Act (NSA). As you may recall, the two (2) most recent rulings in the Texas Medical Association (TMA) lawsuits versus The Tri-Agencies caused a suspension of several aspects of the NSA process and required the Tri-Agencies to issue new guidance that addresses the key aspects of the court rulings.

The Fact Sheet and the proposed rule offer regulatory changes in the following general areas:


The Tri-Agencies have received feedback from Payers and Providers that there is confusion about the applicability of the NSA provisions. In order to address the feedback, the new regulations propose:

  • That Payers provide additional information at the time of initial payment and/or notice of denial of payment. The additional information includes:
    • Legal Business Name of the Plan
    • Legal Business Name of the Plan Sponsor
    • IDR Registration Number
    • Disclosure outlining the new open negotiation process
  • Use, by Payers, of a standard set of codes to delineate whether or not a claim is subject to the NSA provisions and ultimately eligible for the IDR process. The specific requirements include:
    • Use of specific Claim Adjustment Reason Codes (CARCs)
    • Use of specific Remittance Advice Remark Codes (RARCs)

The intention is to make it clear to both parties if a particular claim is subject to the NSA and to reduce the number of ineligible disputes that make their way to the IDR process. Of course, these initiatives rely on the Payers to correctly apply the NSA criteria, something that they have struggled with thus far. Hopefully, this requirement will help to surface confusion more quickly and get the Tri-Agencies involved in the resolution.


The Tri-Agencies proposed several changes intended to encourage disputing parties to engage in meaningful open negotiations ahead of accessing the IDR process. The regulations propose:

  • Centralizing the open negotiation process through the Federal IDR Portal. The party seeking to initiate open negotiations must provide notice and a copy of the claim documentation (remittance advice and/or notice of denial of payment) to the other party and the Tri-Agencies through the Portal.
  • The 30 business day time period will begin when the data is submitted through the Portal.
  • The addition of new data elements in the notice, such as:
    • Plan Type
    • Location of Service
    • Claim Number
  • Revising the process for initiating an IDR notice and setting expectations for response from the non-initiating party. The non-initiating party must respond by the 15th business day after the initial submission.

Hopefully, these changes will encourage the Payers to engage in meaningful open negotiations. Thus far, that has not been the case.


As we have come to appreciate, in the painful way, eligibility determinations for the Federal IDR process are very complex, confusing, time consuming and labor intensive. Oddly enough, the press release observes this burden as it relates to the IDREs and offers no acknowledgment of the SAME impact on the Providers. It would be beneficial for ALL parties if it were clearer upfront. The regulations propose:

  • Setting a 5-business day timeline (from selection of the IDRE) for the eligibility determination to be completed.
  • Transferring the eligibility process from the IDREs to the Tri-Agencies in periods of “systemic delay or extenuating circumstances.” The Departments would provide public notice in advance of invoking this change.

While these steps would expedite the final eligibility determination, they do nothing to clarify the situations and factors that determine the eligibility of a particular claim. This is another example of how the NSA processes fail to provide transparency and favor the “black box” functionality managed by the Payers.


The Tri-Agencies are endeavoring to balance fiscal responsibility and access to the Federal IDR process. They have received feedback regarding the excessiveness of the fees and the cost of carrying out the process exceeds the revenue in some situations. Toward that end, the regulations propose:

  • The Tri-Agencies will collect the non-refundable administrative fee from both parties directly. The expectations around when the fees must be paid would be further clarified.
  • The initiating party will be required to pay the administrative Fee within 2 business days (of selection of the IDRE) and the non-initiating party will be required to pay within 2 business days (of receiving an eligibility notification).
  • If the initiating party does not pay the fee within the timeline, the dispute will be closed. If the non-initiating party doesn’t pay within the window, their offer would be considered void (not received); the non-initiating party would also be subject to bad debt collection procedures.
  • The Administrative Fees would be reduced for “low-dollar” disputes. The determination will be based on the highest offer made by either party during the open negotiation process.
  • The Administrative Fee would still be non-refundable in the event the claim is determined to not be eligible for the IDR process.

The changes would make the process more onerous and might actually encourage more efforts during open negotiation. Pending the final determination of the “low dollar threshold”, the change might make the process more equitable.


There has been a great deal of confusion around batching of claims and the impact of not allowing batching on the IDR process. The Tri-Agencies seem to acknowledge the lack of efficiency and cost impact to all involved. The regulations propose:

  • Allow batching for items and services furnished to a single patient on one or more consecutive dates of service and billed on the same claim form (single patient encounter) to be batched.
  • Items and services billed under the same service code or a comparable code under a different procedural code system are to be batched.
  • Anesthesiology, radiology, pathology, and laboratory items and services billed under service codes belonging to the same Category I CPT code section to be batched.
  • Limited batched determinations to 25 qualified IDR items and services (line items) in a single dispute.

The intent is to achieve balance among objectives, including encouraging efficiency and minimizing costs within the IDR process without unreasonably impeding access to the Federal IDR process. It is still unclear whether the proposed rule will provide any relief to the air medical challenge of requiring two (2) separate IDR claims for the same transport (one for the base fee and one for the mileage fee).


The Tri-Agencies recognize that there are many situations that have contributed to delays in the adjudication process. The new regulations propose:

  • The Tri-Agencies are permitted to extend deadlines during periods of extenuating circumstances. These circumstances would include times when there are systematic delays in dispute processing.
  • The Tri-Agencies will post a public notice when the extensions are granted pursuant to systemic delays.

This change is likely to place further burden on the Providers because the Providers typically bear the majority of the burden (lack of adequate payment for services already delivered) during any delays and/or extensions. It seems clear the Tri-Agencies have no recognition of the damage the NSA has done to the financial viability of many Provider organizations.


The Provider side has reported that it is often challenging to identify the correct payer entity and the proper contact when attempting to facilitate open negotiations (prior to IDR submission). In order to address this concern and promote the effectiveness of the process, the regulations propose:

  • Requiring Payers to register with the Tri-Agencies and provide specific expectations around the applicability of the Federal IDR process relative to specific items or services or coverage. Upon submission, the plan or issuer would receive an IDR registration number.
  • The registration number would serve as a reference for correspondence and process tracking.

The concept is that this registration process would make it easier for Providers to determine if a dispute was eligible for the Federal IDR process.


At the time of this writing, the final proposed regulations have not yet been published in the Federal Register. Once published, a comment period will commence. Hopefully, the Tri-Agencies will take into account the industry comments and the need to provide further clarification and resolution of industry challenges in the NSA-related processes. PLEASE BE SURE TO WORK WITH YOUR REVENUE CYCLE MANAGEMENT PARTNER TO REVIEW THE PROPOSED RULES ONCE THEY ARE PUBLISHED AND OFFER COMMENTS AS APPROPRIATE.


*Ed Marasco is QMC’s Vice-President of Business Development and a veteran healthcare provider and administrator with over 40 years of experience in emergency medical services, reimbursement, and consulting.


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