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Written Follow-Up to CCIIO on Perpetual Cooling Off Periods
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Written Follow-Up to CCIIO on Perpetual Cooling Off Periods
See the email Bob Jasak sent to CCIIO to follow up on his recent conversation perpetual cooling off periods (see the attached document that includes a chart to further explain our concern:
Hi everyone-
Thank you again for taking the time to chat on August 8th about the issue we’ve started to see manifest with IDREs where, basically, claims have been cooling off periods for more than 90 calendar days because the IDREs have directed that another 90 calendar day cooling off period has been triggered for those disputes, in essence preventing these claims from receiving a payment determination as outlined in the No Surprises Act. I wanted to follow-up in writing with some of our thoughts and suggestions on the issue (which I’ll refer to as a “perpetual cooling off period” for shorthand here). As we discussed, we appreciate that in the IDR Operations proposed rule, the Departments already acknowledged receipt of concerns about this, stating:
. . the Departments have heard from some providers that since cooling off periods are allowed to overlap, and with each new written determination issued the current cooling off period is extended before it has ended, there are certain high-volume payers with which providers may be required to wait multiple years before the Federal IDR process could be initiated again
In the interest of ensuring the statute is implemented in a meaningful way and that the backlog of disputes awaiting a payment determination is addressed, we wanted to get down on paper how we thought parallel cooling off periods were going to be managed and why we believe the statue doesn’t entertain “perpetual cooling off periods.” We agree with the way you all couched it as “overlap” in that they should run parallel to each other- not be stacked upon one another. We also acknowledge that the proposed batching provisions in the IDR operations rule could change some of this, but we wanted to address the regulations and guidance as it currently stands.
With the understanding that the effect of the 90-cooling off period is a pause on the ability to “initiate IDR” and that some claims for the same service code might have already passed the IDR initiation stage prior to a 90 day cooling off period commenced, I had mentioned that I had wanted to put together a graphic of how we had always thought this would work based on what we believed the statute directed. Assuming that these disputes are all for the same service code (so that they would be implicated by a 90 day cooling off period), I hope this illustrates what our understanding had been until IDREs were operationalizing this to have disputes endlessly stuck in a cooling off period:
While these are just examples, it demonstrates that this interpretation: (a) honors the statute requiring a 90-day cooling off period after a payment determination; (b) honors the statutory paragraph “(iii) SUBSEQUENT SUBMISSION OF REQUESTS PERMITTED,” which clearly contemplates that the disputes that were suspended from their ability to initiate IDR become ripe for IDR at a time certain.
Another point that we discussed was that if IDREs are, in fact, administering “perpetual cooling off periods” the only reason that could be happening is because of the backlog disputes and length of time it is taken to receive a payment determination. In the example above, the universe of disputes that could possibly reset the 90 day cooling off period (if an IDRE was administering a “perpetual cooling off period” policy) is a known quantity: It’s only disputes 002 and 003 because at the moment dispute 001 received a payment determination, all IDR initiations should have stopped. So even if all of the disputes were allowed to accrue under the longest possible cooling off period, all of the remaining disputes should have been eligible for IDR initiation on June 12th if they weren’t allowed to be initiated at the end of the parallel cooling off periods triggered by disputes 001 and 002. So again, if “perpetual cooling off periods” are indeed prohibiting IDR initiation in perpetuity, that’s only because so many disputes passed the “IDR initiation” phase and then got stuck and are only slowly receiving payment determinations. We don’t believe that that was how the law intended for this to work, nor should the parties be denied their ability to have a case resolved as articulated under the “SUBSEQUENT SUBMISSION OF REQUESTS PERMITTED” section because of this.
I know that was a lot of text, but I promised to follow-up in writing and just wanted to sum up by saying that we believe allowance of a “perpetual cooling off period” policy is doing a disservice to all parties because, at some point, those disputes must have access to dispute resolution, and if disputes can’t accrue to parallel cooling off periods (rather than stacked/constantly resetting cooling off periods) then the pool of disputes that can be batched together will be enormous.
Just let us know if we can answer any additional questions or provide any additional information.
Thanks-
Bob
p.s. On the separate issue regarding payment determinations going out without the prevailing offer amount, I’m collecting documentation for you and will send in a separate email once we have as much information as we can get our hands on.
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This discussion was modified 7 months, 2 weeks ago by
Cathey Wise.
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This discussion was modified 7 months, 2 weeks ago by
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