5
149.510(c)(3)(i)(C) that for qualified IDR items and services to be batched together, the qualified
IDR items or services must be “the same or similar items and services,” defined as those items or
services billed under the same service code or a comparable code under a different procedural
code system, such as CPT codes with modifiers, if applicable, HCPCS with modifiers, if
applicable, or DRG codes with modifiers, if applicable.
15
15
The TMA IV order also vacated the $350 administrative fee per party established by the Amendment to the
Calendar Year 2023 Fee Guidance for the Federal Independent Dispute Resolution Process Under the No Surprises
Act: Change in Administrative Fee issued on December 23, 2022, available at
https://www.cms.gov/cciio/resources/regulations-and-gui
dance/downloads/amended-cy2023-fee-guidance-federal-
independent-di
spute-resolution-process-nsa.pdf. The Departments previously issued guidance to clarify the
administrative fee amount for 2023 following TMA IV. See Centers for Medicare & Medicaid Services (Aug. 11,
2023). Federal Independent Dispute Resolution (IDR) Process Administrative Fee FAQs, available at
https://www.cms.gov/cciio/resources/regulations-and-guida
nce/downloads/no-surprises-act-independent-dispute-
resolution-a
dministrative-fee-frequently-asked-questions.pdf.
Subsequently, of relevance to these FAQs, on August 24, 2023, the District Court issued an
opinion and order
16
that vacated the portion of the August 2022 Technical Guidance for Certified
IDR Entities (August Technical Guidance)
17
that had provided that the two service codes for a
single air ambulance transport (one representing a lift off code, or base rate, and the other
representing a per mileage code) could not be batched in a single IDR dispute.
18
16
Memorandum Opinion and Order, Tex. Med. Ass’n v. U.S. Dep’t of Health & Hum. Servs. (“TMA III”), No. 6:22-
cv-450-JDK, 2023 WL 5489028 (E.D. Tex. Aug. 24, 2023).
17
Technical Guidance for Certified IDR Entities at 2-3 (Aug. 18, 2022), available at
https://www.cms.gov/files/document/TA-certified-independent-dispute-resolution-entities-August-2022.pdf.
18
The opinion and order in TMA III also vacated provisions of the July 2021 interim final rules and other guidance
documents relating to the QPA methodology, among other things. TMA III, 2023 WL 5489028, at *19-20. The
Departments issued FAQs About Consolidated Appropriations Act, 2021 Implementation Part 62 (Oct. 6, 2023),
available at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-62
and
https://www.cms.gov/files/document/faqs-part-62.pdf to provide guidance on those other aspects of the TMA III
decision.
Q2: In light of the TMA IV and TMA III opinions and orders, how do the batching
requirements of the No Surprises Act apply to qualified IDR items and services for disputes
eligible for initiation of the Federal IDR process on or after August 3, 2023?
As a result of the TMA IV and TMA III opinions and orders, Code section 9816(c)(3)(A)(iii),
ERISA section 716(c)(3)(A)(iii), and PHS Act section 2799A–1(c)(3)(A)(iii), in conjunction
with the remaining non-vacated regulations, provide the effective standard for determining
whether qualified IDR items and services may appropriately be batched together. That statutory
text provides that items and services may be considered jointly as part of a single determination
only if they are “related to the treatment of a similar condition.” Therefore, until the Departments
and OPM engage in notice and comment rulemaking on the circumstances under which items
and services will be considered “related to the treatment of a similar condition,” disputes eligible
for initiation of the Federal IDR process on or after August 3, 2023, should be submitted in a
manner that is consistent with the statutes and regulations that remain in effect after the TMA IV
and TMA III vacaturs. The District Court’s order in TMA IV does not impact the batching
provisions set forth at 26 CFR 54.9816-8T(c)(3)(i)(A), (B), or (D), 29 CFR 2590.716-
8(c)(3)(i)(A), (B), or (D), and 45 CFR 149.510(c)(3)(i)(A), (B), or (D) and those provisions