Ermer & Suter, PLLC, is general counsel to the SAMBA Federal Employee Benefit Association (“SAMBA”). SAMBA is the carrier of the SAMBA Health Benefits Plan, which is created by a federal contract between SAMBA and the U.S. Office of Personnel Management (“OPM”) under the Federal Employee Health Benefits Act.
Ermer & Suter represents SAMBA in the No Surprises Act’s Federal independent dispute resolution (“IDR”) process.
The Federal IDR process is available only for out-of-network emergency services, certain services provided by out-of-network providers at an in-network facility, or out-of-network air ambulance services when SAMBA is the primary payer. CIGNA is SAMBA’s network vendor.
- Medicare is not subject to the No Surprises Act. When a SAMBA plan member has primary Medicare coverage, the provider may not engage in the Federal IDR process.
- Also when a SAMBA plan member is retired, over age 65, and has not enrolled for Medicare Part B, the Federal Employees Health Benefits Act, 5 U.S.C. § 8904(b)(1)(B), and OPM’s regulations at 5 CFR Part 890, Subpart I, require SAMBA to pay for physicians services as defined under Medicare Part B based on the Medicare Part B fee schedule. In the final independent dispute resolution rule that the NSA regulators issued on August 19, 2022, and published in the Federal Register on August 26, 2022, those regulators explained
- Under 5 U.S.C. 8904(b), in the case of a retired individual who is over age 65 and enrolled in the Federal Employees Health Benefits (FEHB) Program but not covered by Medicare part A or B, fee-for-service FEHB carriers may not pay a charge imposed by a hospital provider for inpatient services or a physician to the extent that charge exceeds applicable Medicare limits. The Departments, after consulting with OPM, clarify that a certified IDR entity is not considered to violate the prohibition on considering the payment or reimbursement rate for items and services furnished by the provider, facility, or provider of air ambulance services payable by a public payor to the extent the certified IDR entity’s selection of an offer is made to allow compliance with 5 U.S.C. 8904(b) and 5 CFR 890, Subpart I. That is, if 5 U.S.C. 8904(b) applies, and either offer exceeds the applicable Medicare limit referenced in 5 U.S.C. 8904(b), the certified IDR entity must ensure that the payment determination does not exceed the applicable Medicare limit. A certified IDR entity would not be considered to violate the prohibition on considering Medicare reimbursement rates when it selects an offer on this basis.
87 Fed. Reg. 52,618, 52630 (August 26, 2022), available at https://tinyurl.com/ya3an2w2
- A party may not initiate the Federal IDR process if, with respect to an item or service, the party knows or reasonably should have known that the provider or facility provided notice and obtained consent from a participant, beneficiary, or enrollee to waive surprise billing protections consistent with PHS Act sections 2799B-1(a) and 2799B-2(a) and the implementing regulations at 45 CFR §§ 149.410(b) and 149.420(c)-(i).
Before accessing the Federal IDR process to determine the out-of-network rate for a qualified item or service, the disputing parties must engage in a 30-business-day open negotiation period to attempt to reach an agreement regarding the total out-of-network rate (including any cost sharing)
The first step in this process in known as an open negotiation period.
The open negotiation period is a period of up to 30 business days to determine an agreed-upon amount for the total out-of-network rate (including any cost sharing) for an item or service furnished by a nonparticipating provider, nonparticipating facility, or a nonparticipating provider of air ambulance services to a participant, beneficiary, or enrollee in a group health plan, group or individual health insurance policy, or FEHB carrier and for which a payment is required to be made by the plan or coverage.
The initiating party must provide notice on the appropriate government form to Ermer & Suter, PLLC, within 30 business days of the receipt of initial payment or notice of denial of payment for the item or service. Specifically, the initiating party may initiate the open negotiation period by sending an open negotiation notice to the other party by mail. Our mailing address is
P.O. Box 34602
Washington DC 20043-4602
The initiating party also may send the notice electronically to us at [email protected] or by fax to 1-202-833-2027.
We confirm receipt of all Open Negotiation Requests by return email.
If you have questions for us, please call 1-202-627-3107.
If we have not agreed upon a payment amount by the end of the open negotiation period, either party can begin the Federal IDR process during the 4-business-day period beginning on the 31st business day after the start of the open negotiation period.
For more information on the Federal IDR process and to obtain the notice to initiate the Federal IDR process, visit https://www.nsa-idr.cms.gov.
Initiating the Federal IDR process does not prohibit us from mutually agreeing on a payment amount after the open negotiation period has ended and before the certified IDR entity determines the payment amount.