Under the No Surprises Act, “open negotiation” is the period of time during which payers must disclose to providers important information regarding the claim at issue. On June 14, 2024, CMS announced a 120-calendar-day exception period, the open negotiation period under the No Surprises Act, for providers, facilities, and providers of air ambulance services whose ability to initiate the open negotiation process was impacted by a recent cybersecurity attack.

The cybersecurity incident in February 2024 suffered by Change Healthcare—a unit of UnitedHealth Group—impacted healthcare operations across the country. This incident prevented disputing providers from receiving necessary payment information and disclosures from plans or issuers, which, in turn, prevented the disputing providers from initiating open negotiation. [cite]

Ordinarily, if this necessary information is not timely disclosed to disputing parties, the party can individually email a request for an extension due to extenuating circumstances. [cite] However, in this instance, the Departments of Health and Human Services, Labor, and the Treasury recognized that requiring individual extension requests would be burdensome because payment for a very large volume of items and services was impacted by the cybersecurity incident. [cite]

If a disputing party’s ability to timely initiate open negotiation for items or services provided on or after January 1, 2024 was impacted by the cybersecurity incident, that party is permitted to initiate open negotiation for those items or services at any point between June 14, 2024 and October 12, 2024. [cite] To take advantage of this exception period, the disputing party must attest that their ability to timely initiate open negotiation was impacted by the cybersecurity incident via a form published by the departments. Disputing parties must provide the attestation and the standard open negotiation initiation form to plans and issuers. [cite]

Also, disputing parties who initiate the federal IDR process must provide the attestation and standard IDR initiation form to non-initiating plans and issuers and certified IDR entities. [cite] If there is a disagreement regarding the eligibility of the disputing party to initiate open negotiation, the IDR entity will be responsible for determining the eligibility. [cite] A non-initiating party who opposes a disputing party’s eligibility must submit documentation in support of their position to the disputing party and the certified IDR entities. [see section 5.5 of guidance]

Nicholas Browndorf, a Cozen O’Connor summer associate, is a co-author of this article.