The Biden Administration’s Proposed IDR Rules 

On October 27, 2023, the Biden Administration released a proposed rule on the No Surprises Act’s (“NSA”) Federal independent dispute resolution (“IDR”) process.  The IDR process has been mired in litigation since the enactment of the NSA, which is enforced by the Departments of Health and Human Services (HHS), Labor, and the Treasury (the “Departments”), along with the Office of Personnel Management. 

In our Proposed IDR Rules Blog Part 1, we addressed provisions in the proposed rule that are intended to improve communications between payers and providers. Part 2 of the proposed IDR rules addresses proposed changes to the open negotiation and IDR initiation process, as well as IDR eligibility and proposed changes to the IDR fee structure. 

Part 2: Open Negotiation and IDR Initiation 

Open Negotiation and IDR Initiation 

The proposed IDR rule, if finalized, would revise the process for initiating the Federal IDR process. Specifically, the proposed rule would amend the requirements for the content of the notice of IDR initiation and establish new requirements for a notice of IDR initiation response from the non-initiating party. 

Federal IDR portal 

• The Departments propose to centralize the open negotiation process through the Federal IDR portal. Under this proposed rule, 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 Departments 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. 

Open Negotiations Notice Changes 

• The Departments propose to include new content elements in the open negotiation notice, such as the plan type, the location of service, and the claim number, to help parties identify the relevant item or service and whether the Federal IDR process applies. The Departments also propose provisions that would help ensure parties respond to open negotiation notices and engage with one another during the open negotiation period. 

IDR Eligibility and Administrative Fee 

The Departments recognize that claim eligibility for the Federal IDR process have proven to be complex, time-consuming, and resource-intensive, resulting in Non-NSA claims being considered in the IDR process. Further, the current administrative fee structure for IDR may be prohibitive in connection with small dollar claims.  

Departmental Review 

• The proposed rule would establish a Departmental eligibility review process that could be invoked when dispute volume is high to enable the Departments to exclude Non-NSA claims from the IDR process to facilitate faster dispute processing for eligible claims.  

Change in Fee Structure 

• The Departments are proposing a reduced administrative fee structure and amounts for parties in low-dollar disputes to promote equitable access to initiate the Federal IDR process, as well as a reduced administrative fee for non-initiating parties in ineligible disputes. 
• Further, the Departments propose consequences for failing to pay the fees associated with the Federal IDR process on time. 

In combination, the proposed changes in this rule would help improve timely payment determinations and create a more efficient Federal IDR process. 

Please visit No Surprises Act Independent Dispute Resolution Process Proposed Rule Fact Sheet | CMS  for additional information on the proposed rules. Please continue to visit our blog for information on regulatory developments.  

Contact 6 Degrees Health compliance team with any questions.