Reed Smith News Flashes

On November 28, 2023, federal regulators released guidance regarding the treatment of batched disputes in the independent dispute resolution (IDR) process under the No Surprises Act. This guidance stems from recent Texas Medical Association cases, which vacated aspects of the rules that allow batching of multiple patients’ services in IDR. In a previous decision, the court vacated the regulation requiring batched services to be billed with the same service code because the statutory text only requires that the services relate to the treatment of similar patient conditions. The court additionally ruled that air ambulance transports are not subject to batching rules. As a result of these decisions, the agencies closed the IDR portal for new or existing batched disputes on August 3, 2023, and for new or existing air ambulance disputes on August 24, 2023.

The new guidance clarifies that, consistent with the decisions in the Texas Medical Association cases, initiating parties may batch eligible services in a single IDR proceeding if they relate to the treatment of similar conditions. However, the agencies do not provide any guidance on what this means in practice, leaving it to IDR entities and disputing parties to navigate this murky requirement. Providers may increase the number of services in batched disputes given the lack of clarity. Although proposed amendments to the IDR rules would limit batched disputes to 25 services, there is currently no limit on the number of services that may be batched in IDR. High-volume batched disputes could dramatically increase the burden on payors to research and assert eligibility objections within the requisite three-business-day period following IDR initiation.

While the IDR portal remains closed to batched disputes and air ambulance disputes, the agencies expect to reopen it “as soon as possible.” Once they do:

  • Parties will have 20 business days to initiate batched disputes and air ambulance disputes arising since August 3, 2023.