• Confirms that the IDR administrative fee amount and certified IDR fee ranges will be set and adjusted through notice-and-comment rulemaking, rather than in sub-regulatory guidance, as required by the federal district court’s order;
• Establishes a revised methodology, outlined in the preamble to the final rule, the federal government will use to calculate the administrative fee and the considerations it will use to develop the certified IDR fee ranges;
• Sets the amount of the federal IDR administrative fee at $115 per party (less than the proposed $150 per party fee) for disputes initiated on or after the effective date of January 22, 2024;
• Finalizes the Departments’ proposal establishing separate certified IDR entity fee ranges for single determinations and batched determinations;
• Sets the certified IDR fee ranges as $200-$840 for single determinations and $268-$1,173 for batched determinations, and sets a fixed tiered fee of $75-$250 for each additional increment of 25 dispute line items in batched disputes containing more than 25-line items; and
• Confirms that Departments will update the administrative fee and certified IDR fee amounts no more frequently than once per calendar year, respectively.

Background on IDR Fees and Recent Litigation

The No Surprises Act (NSA) prohibits surprise billing for out-of-network (OON) emergency care, air ambulance services, and facility-based nonemergency services, while also prohibiting balance billing circumstances in which surprise bills frequently occur. The NSA established a federal IDR process that group health plans and health insurance issuers and OON providers and facilities could use to resolve certain disputes regarding OON payment rates. The Departments issued an interim final rule in October 2021 implementing the federal IDR process, establishing that each disputing party must pay an administrative fee for participating in the federal IDR process. At the same time, the Departments also issued sub-regulatory guidance setting the initial administrative fee and other payment ranges for determinations made by certified IDR entities for calendar year 2022. The Departments subsequently announced in December 2022 increased fees for disputes initiated in calendar year 2023.

Since its enactment, there have been more than 20 different legal challenges to various aspects of the NSA and its implementing regulations, including related to the federal IDR process. Multiple of these challenges have been brought by the same set of plaintiffs, the Texas Medical Association, and several air ambulance providers, in the federal district court for the Eastern District of Texas. In one of these cases, TMA IV, the plaintiffs challenged the federal IDR administrative fee. In August 2023, the judge in the TMA IV case issued an opinion and order vacating the portions of the previous guidance the Departments used to establish the administrative fee amount for the Federal IDR process for disputes initiated during calendar year 2023. The Departments published the proposed rules amending the federal IDR administrative fee in response to the district court’s order in September 2023 (summarized by the Business Group at the time in our Policy Newsletter article), which the Departments are now finalizing.

What's Next?

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