Amendment to the Calendar Year 2023 Fee Guidance for the Federal Independent Dispute Resolution Process Under the No Surprises Act: Change in Administrative Fee (Dec. 23, 2022)
Available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/cy23-federal-idr-process-fee-guidance-amended-to508.pdf
The DOL, HHS, and IRS have amended their 2023 fee guidance for the federal independent dispute resolution (IDR) process used by plans, insurers, providers, and certified IDR entities in resolving claims for payment for out-of-network services. As background, guidance issued in October 2022 set forth the administrative fee for participating in the federal IDR process in 2023, as well as the allowable ranges for certified IDR entity fees related to single and batched determinations (see our Checkpoint article). The administrative fee—initially set at $50 for calendar year 2023—is based on the cost to the agencies to carry out the IDR process and is paid by each party upon initiation of the process. Each party must also pay a certified IDR entity fee to the certified IDR entity (the fee will be refunded to the prevailing party). For 2023, certified IDR entities are allowed to charge a fee ranging from $200 to $700 for single determinations and from $268 to $938 for batched determinations.
The agencies have now amended the prior fee guidance to increase the administrative fee from $50 to $350 per party for disputes initiated during the calendar year beginning January 1, 2023. The amended guidance explains that the increased fee reflects the rising volume of disputes and additional expenditures associated with the agencies’ enhanced role in conducting pre-eligibility reviews to address a significant and growing backlog of disputes. No changes have been made to the 2023 certified IDR entity fee ranges for single or batched determinations.
EBIA Comment: The amended guidance sheds some light on the extent of the IDR backlog. Between April 15, 2022 (the date the IDR portal launched) and December 5, 2022, disputing parties initiated over 164,000 disputes—nearly ten times more than the agencies had estimated for a full calendar year. Moreover, non-initiating parties contested the eligibility of over 68,000 disputes, and over 23,000 disputes were found ineligible for the IDR process, resulting in low collections of the administrative fee relative to the volume of disputes processed. To resolve the backlog, the agencies have hired a contractor and dedicated government staff to conduct pre-eligibility reviews to reduce the burden on certified IDR entities. For more information, see EBIA’s Health Care Reform manual at Sections XII.B.3 (“Surprise Medical Billing: Emergency and Non-Emergency Services”) and XII.B.4 (“Surprise Air Ambulance Billing”) and EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C (“Federally Mandated Benefits”).
Contributing Editors: EBIA Staff