Agencies Release FAQs and Another Process Guide About Surprise Billing Independent Dispute Resolution

The DOL, IRS, and HHS have jointly issued FAQs and process guidance for disputing parties to address the independent dispute resolution (IDR) process under the No Surprises Act, enacted as part of the Consolidated Appropriations Act, 2021 (CAA) (see our Checkpoint article). As background, the CAA expanded patient protections to shield individuals from surprise bills for certain emergency and non-emergency services. Implementing regulations established a federal IDR process for use by out-of-network providers, plans, and insurers to resolve payment disputes after an unsuccessful open negotiation (see our Checkpoint article). Among other things, the regulations require the disputing parties to submit their offers for payment, with supporting documentation, to a certified IDR entity, which then issues a binding determination. This latest guidance provides details on the IDR process. Here are highlights:

• Certified IDR Entities. Several of the Q/As address information specific to the qualifications and application process for certified IDR entities (e.g., licensing, accreditations, and conflicts of interest). Q/A-10 advises that a list of certified IDR entities is available on the HHS website and will be updated on a rolling basis.
• Fees. In Q/As-19 and -20, the agencies describe the two permitted types of IDR fees. An administrative fee (set at $50 for 2022) is paid by each of the disputing parties for participating in the federal IDR process, and a certified IDR entity fee (ranging from $200 to $500 for single determinations and $268 to $670 for batched determinations) is set by the entity under agency fee guidance. Q/A-21 explains that each party pays the entire certified IDR entity fee at the time it provides its offer, and the certified IDR entity refunds the prevailing party’s fee within 30 business days after making a determination. Each of the disputing parties pays half the certified IDR entity fee if a case is settled, unless the parties agree otherwise.
• Process. The agencies confirm in Q/A-28 that the federal IDR process involves paper review, allowing the parties to submit supporting documents in addition to those required under the IDR process, but without hearings. The FAQs emphasize that the federal IDR process does not replace the external claims review process, which addresses adverse benefit determinations involving enrolled individuals rather than payment disputes involving providers or facilities. Other Q/As address the interplay between IDR and state and federal external review models. And Q/A-39 provides a link to a state-by-state list detailing each state’s IDR rules. In addition, the agencies have released a process guide for disputing parties which is similar to a recently released process guide for certified IDR entities (see our Checkpoint article) but focused on the federal IDR portal and process information for the parties seeking to resolve claims. The guide includes an overview of the federal IDR process with a timeline and summary of the steps, and provides links to resources such as model required notices.

EBIA Comment: The federal IDR portal launched with functionalities related to uninsured individuals on January 1, 2022. Functionalities for providers, facilities, plans, and insurers are expected to be available “in the coming weeks.” The agencies estimate that there will be approximately 17,000 IDR requests annually. Plans and insurers should familiarize themselves with the IDR process requirements for disputing parties—particularly since some timeframes for action are quite short. For more information, see EBIA’s Health Care Reform manual at Section XII.B.3 (“Surprise Medical Billing: (Emergency and Non-Emergency Services”). See also EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C (“Federally Mandated Benefits”).

Contributing Editors: EBIA Staff.