In response to federal court orders and input from providers, the Administration has issued proposed rules governing the Independent Dispute Resolution (“IDR”) process under the No Surprises Act (“the Act”), which should facilitate its use by providers.

The IDR process was intended to resolve disputes between payers and providers regarding the amount insurers would pay for out-of-network services subject to the Act. In general, these are services provided by out-of-network providers after treatment for an emergency service and services for treatment for a non-emergency service by an out-of-network provider at an in-network facility, unless payment for those services is governed by state law.  The IDR process is a “baseball-style” arbitration under which the provider and the health plan each submit an offer and the IDR entity selects one of the two offers.  The Act also provides for an optional 30-business day negotiation period. There is a non-refundable administrative fee for using the IDR process, which must be paid by both parties.  The loser is required to pay the IDR entity’s fees.

As a result of a series of lawsuits brought by the Texas Medical Association (“TMA”), some of the earlier rules governing the IDR process have been struck down.  In addition, many providers have expressed frustration in their efforts to use the IDR process.  In response, on October 27, 2023, the Administration proposed new rules governing the IDR process.

The proposed rules would:

  • Require payers to provide additional information at the time of the initial payment or denial of payment, including the legal name of the play or issuer the legal name of the plan sponsor, if any, and the IDR registration number.
  • Require payers to use specific Claim Adjustment Reason Codes (“CARCs”) and Remittance Advice Remark Codes (“RARCs”) to communicate information to providers, including information regarding whether a claim is or is not subject to the Act and eligible for the IDR process. This proposed rule addresses the problem that a significant percentage of the submitted IDR disputes relate to claims that are not eligible for the process.
  • Require parties desiring to use the 30-business day open negotiation period to provide notice to the other party through the IDR portal. This proposed rule addresses frustrations expressed by providers that they frequently did not know whom to contact at a health plan to start negotiations.
  • Require the respondent to an open negotiation request to respond by the fifteenth business day of the 30-business day open negotiation period.
  • Allow the inclusion of multiple items and services in a single “batched” dispute with a limit of 25 line items. The previously published batching rules had been vacated by the federal court in the TMA litigation and providers have been asking for more flexibility in the ability to batch disputes in order to reduce costs. The Administration specifically asked for comments on the substance of the rules governing batched disputes and on the limit of 25 line items per batch.
  • Require the payment of the administrative fee directly to the government rather than to the IDR entity.
  • Set a reduced administrative fee when the highest offer made during open negotiation by either disputing party was less than a predetermined threshold. This proposed rule was in response to provider input and arguments made in the TMA litigation that the IDR process was cost prohibitive for claims involving lower dollar amounts.

Comments will be due 60 days after publication in the Federal Register.  CMS’s Fact Sheet about the proposed rules, which includes a hyperlink to the rules themselves, is linked here.

The attorneys at Whatley Kallas, LLP will continue to follow the proposed rules as they are finalized and implemented. Whatley Kallas’s earlier articles on the Court’s opinions in the TMA litigation are linked here and here.


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