For more information about this blog post, please contact Ryan L. O’Neill or Labinot Alexander Berlajolli.

The federal government’s Final Rule (87 FR 52618) titled “Requirements Related to Surprise Billing” became effective on October 25, 2022. This Final Rule finalized requirements under the July and October 2021 interim final rules relating to information that insurers must share about the qualifying payment amount (“QPA”) as well as select provisions related to information that a certified independent dispute resolution (“IDR”) entity must consider when making a payment determination under the federal IDR process.

By way of background, on February 23 and July 26, 2022, the United States District Court for the Eastern District of Texas vacated portions of the October 2021 interim final rules related to payment determinations under the federal IDR process (See Texas Medical Association, et al. v. United States Department of Health and Human Services, et al., Case No. 6:21-cv-425 (E.D. Tex.), and LifeNet, Inc. v. United States Department of Health and Human Services, et al., Case No. 6:22-cv-162 (E.D. Tex.), respectively).

This Final Rule contains updated provisions to comply with the courts’ decisions and reflects the removal of the vacated provisions. Among other things, this Final rule sets forth the following requirements:

• Certified IDR entities must consider the QPA and then must consider all additional permissible information submitted by each party to determine which offer best reflects the appropriate out-of-network rate;
• Certified IDR entities must explain their payment determinations and underlying rationale in a written decision submitted to the parties and the federal government;
• The written decision must include an explanation of the information that the certified IDR entity determined demonstrated that the selected offer is the out-of-network rate that best represents the value of the item or service; and
• If the certified IDR entity relies on additional information or circumstances when selecting an offer, the written decision must include an explanation of why the certified IDR entity concluded the information was not already reflected in the QPA.

The federal government issued a Fact Sheet on the Final Rule, found here.