Independent Dispute Resolution Process

October 26, 2021

Surprise Billing Regulations Part II

On September 30, 2021, the U.S. Departments of Health and Human Services (HHS), Labor and Treasury (collectively, the Departments) along with the Office of Management and Budget released “Requirements Related to Surprise Billing: Part II,” to provide additional guidance on the Consolidated Appropriations Act (CAA).

Additional Details on the Independent Dispute Resolution Process (IDR)

These regulations establish standards related to the IDR entity certification process, and outline specific deadlines that health plans and providers must meet to complete each step in the IDR process. In addition, all required forms and actions included in the process are documented and saved on an online federal portal. The IDR process is not available where the out-of-network rate is determined by reference to an All-Payor Model Agreement or a specified state law.

A health care provider or a health plan/issuer may initiate an open negotiation period by providing a notice, on a standardized form to the other party, within 30 business days of the initial payment or denial of payment for a qualified item or service. If the parties do not reach an agreement within the 30 business day open negotiation period, either party may initiate the IDR process by sending a standard form notice to the other party and to the Secretary of HHS. The parties may jointly select a certified IDR entity to resolve the dispute, but if they cannot agree or the chosen entity has a conflict of interest, the agencies will select an entity.

Within ten business days after the selection of the certified IDR entity, the plan and the provider each submit its offer of the OON rate stated as both a dollar amount and percentage of the qualifying payment amount (QPA). Within 30 business days after the selection of the certified IDR entity, the IDR entity is required to choose as the OON rate one of the offers submitted. The certified IDR entity begins with the presumption that the QPA is the appropriate OON rate and the entity shall not consider usual and customary charges, the amount that would have been billed if the surprise billing rules had not applied, or any public payor payment or reimbursement rates. The certified IDR entity will select the offer that is closest to the QPA, unless credible information was submitted that clearly demonstrates that the value of the item or service is materially different from the QPA.

Providers may submit the following factors, to demonstrate why the determined amount should be higher than the QPA:

• the level of training, experience and quality of the provider;

• the market share held by the providers and the plan/issuer in the geographic region;

• the acuity of the patient and complexity of the item or service;

• the teaching status, case mix and scope of services of a provider that is a facility; and

• the demonstration of good faith efforts for the provider and plan/issuer to enter into network agreements.

The IDR entity’s decision is binding in the absence of fraud or evidence of intentional misrepresentation, and is not generally subject to judicial review. Both parties pay an administrative fee ($50 each for 2022) at the beginning of the IDR process and once the OON rate is selected, the party whose offer is not selected must pay an additional fee for the cost of the IDR process. The initiating party may not initiate another IDR process involving the same other party and the same or similar item or service within 90 days after the initial determination.

Expanded Requirements for External Reviews

Federal and state external review processes will be available to dispute determinations over whether a health plan/issuer complied with the No Surprises Act (NSA) cost-sharing and other surprise billing protections. Because the No Surprises Act applies to grandfathered health plans, external review extends to those plans as well. WebTPA will be establishing process and procedure documentation to support the IDR process for surprise bills on behalf of our clients starting in 2022. If you have any questions about this process, please contact your Account Executive.