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Proposed Rule on the No Surprises Act Independent Dispute Resolution Process

On October 27, 2023, the Biden Administration's proposed rule on the No Surprises Act’s (“NSA”) Federal Independent Dispute Resolution (“IDR”) process was released. The NSA, in part, protects health plan participants from surprise billing for emergency and out-of-network healthcare and air ambulance services and requires that health plans and providers resolve payment disputes exclusively through the IDR process. If the payment dispute cannot be initially resolved through informal negotiation during a 30-day period, either party may elect to have a certified IDR entity (arbitrator), decide the payment dispute through baseball-style arbitration. The IDR process is enforced by the Departments of Health and Human Services, Labor, and the Treasury (the “Agencies”).


Improved Communication

  • The proposed rule, if finalized, would, in part, improve communications between health plans and providers, in part by requiring that health plans provide additional information at the time of initial payment or notice of denial of payment, including the legal business name of the plan or insurer, the legal business name of the plan sponsor, and its IDR registration number further described under the “IDR Registry” described in the fact sheet referenced below.

Open Negotiation

  • The Agencies propose to centralize the open negotiation process through the Federal IDR portal. Under the proposal, a party choosing to initiate open negotiation must provide an open negotiation notice and a copy of the remittance advice or notice of denial of payment to the other party and the Agencies through the Federal IDR portal. Under the current process, a party must contact the other party directly to initiate open negotiations, which has resulted in uncertainty as to whether open negotiation was ever properly initiated.

IDR Eligibility & IDR Fee

  • The proposed rule would allow the Agencies to review eligibility for disputes that could be invoked when dispute volume is high to enable the Agencies to eliminate non-NSA eligible claims to facilitate faster processing of eligible disputes.

  • Both parties to a payment dispute must pay a non-refundable administrative fee for participating in the Federal IDR process. The Agencies propose consequences for failing to timely pay the fees associated with the Federal IDR process. The Agencies are also proposing a reduced administrative fee structure for parties in low-dollar disputes to promote equitable access to initiate the Federal IDR process.

The proposed changes are intended to create a more efficient Federal IDR process. Please visit the No Surprises Act Independent Dispute Resolution Process Proposed Rule Fact Sheet for additional information. Feel free to contact us with any questions.


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