John Ok

Today let’s discuss enforcement of the NSA and how the final rule only partially helped solve this problem. A fair process for enforcement requires a front-end penalty for submitting ineligible claims and a back-end penalty for failing to pay after a successful IDR determination. The back-end penalty is straightforward. EDPMA's full-year 2024 data found 59.6% of IDR awards were not paid within the statutory 30-day window. Of awards that were paid, 26.3% were paid in the wrong amount. H.R. 4710, the No Surprises Enforcement Act sponsored by Rep. Greg Murphy and Sen. Roger Marshall, creates the penalty structure for non-payment that the NSA should have included from the beginning. It has bipartisan support in both chambers and it should move. The front-end penalty is less straightforward. In 2022, 45% of all IDR disputes were dismissed as ineligible. By 2023 that dropped to 22%, but at current volumes 22% still represents hundreds of thousands of cases consuming arbitrator time and administrative fees before being thrown out. A penalty for submitting ineligible claims seems like an obvious fix. The problem is that physicians frequently cannot determine eligibility at the time of submission. The CARC and RARC codes the final rule mandates are a real improvement. That being said, many times a code is being used (N830) that tells the physician the claim is eligible but does not tell you whether a claim belongs in federal IDR or a state process. In the 33-plus states with bifurcated systems, where some plans go to state IDR and others go to federal, that distinction requires plan-level data the physician does not have. The insurer has it but chooses either not to provide the information or uses an ambiguous code This is the irony at the center of the eligibility debate. The industry most loudly complaining about ineligible claims flooding the system is the only party with the data infrastructure to prevent it. Insurers know whether a given plan is self-insured ERISA, fully insured state-regulated, grandfathered, or non-grandfathered. They know what state law applies to each claim. Physicians are expected to make accurate eligibility determinations with none of that information. A penalty that attaches to submitting ineligible claims cannot be fair if the data required to determine eligibility is held exclusively by the opposing party and not disclosed or incompletely disclosed. Here is what a workable front-end enforcement structure looks like. Before a physician can submit a dispute to the federal IDR portal, they go through a standardized eligibility clearinghouse that takes the claim data and cross-references it against insurer-supplied plan data to make the state versus federal determination. If the claim clears that check, the clearinghouse issues a unique submission token. The federal portal only accepts disputes accompanied by a valid token. No token, no submission. The penalty attaches to submitting without a token, not to the outcome of an eligibility determination made without adequate data. This approach changes the policy logic. If the penalty attaches to bypassing the eligibility check, then insurer participation in the clearinghouse is not optional. They either supply the plan-level data that makes accurate eligibility determinations possible, or they own the eligibility problem they have been complaining about. Physicians do not want to submit ineligible claims. They want the data to avoid it. The clearinghouse model gives them that, and it makes insurer data participation a structural requirement rather than a voluntary gesture. Together we can solve these issues. Physicians don’t want to submit ineligible claims. Payers don’t want to have to fight every claim that is ineligible and/or pay out on claims that never should have been in the system in the first place. There is clear consensus here that the administration and Congress can move quickly on.