Fifth Circuit, HHS Keep No Surprises Act dispute resolution provision in limbo; Delays expected

On February 23, 2022, the Federal Eastern District of Texas vacated the interim final rule regulations that establish the independent dispute resolution provisions of the No Surprises Act (NSA). On April 22, the Department of Health and Human Services and other Federal Agencies (HHS) appealed the decision to the Fifth Circuit. However, HHS also requested the Fifth Circuit to hold HHS’ appeal until HHS could issue the final rule on the independent dispute resolution process. The Fifth Circuit granted this motion on May 3 with status reports on the final rule due to the court every 60 days.

According to HHS’ pleadings in the Fifth Circuit, the final rule is expected “early this summer,” and the final rule “will supersede the portions of the interim final rule that the plaintiffs challenged” in the Eastern District of Texas.

Providers that desire to enter the independent dispute resolution process via the NSA may still submit their dispute to CMS. However, until the final rule is published and in effect, these claims will not be processed. Not only is HHS expecting a backlog of claims, but providers may also expect further delays if HHS’ final rule is challenged again via litigation. Providers desiring a faster resolution to their disputes with insurance companies should evaluate if their claims dispute may be resolved through applicable state surprise bill regulations and their respective dispute resolution regulations.