On October 27, 2023  CMS announced the latest NSA IDR process proposed rule in response to feedback and legal challenges by interested parties.  The aim of the new guidance is to improve the functioning of the Federal Independent Dispute Resolution (IDR) operations. Here’s what you need to know:

Early Communication Between Payers and Providers:

Under the prosed rule, payers are required to furnish additional information to providers at the time of initial payment or denial of payment. This information includes the legal business name of the plan, the legal business name of the plan sponsor (if applicable), and its IDR registration number.

Payers are to use specific claim adjustment reason codes (CARCs) and remittance advice remark codes (RARCs) when communicating with providers to clarify whether a claim is subject to the No Surprises Act and whether the claim is eligible for the Federal IDR process.

Open Negotiation and IDR Initiation:

The proposal emphasizes the importance of seeking to engage in meaningful open negotiations.  

According to CMS, “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 every properly initiated.”

Under the new proposal, parties will be required to initiate the open negotiation period via the IDR portal, by submitting a new “open negotiation notice,” which will include specific content elements to better identify the claim and by furnishing a formal notice of denial of payment to the non-initiating party and the federal departments.  An “open negotiation response notice” from the non-initiating party will also be implemented.


New batching provisions will allow parties to include multiple items or services in a single dispute (batched dispute) to improve efficiency, provided those items and services relate to the treatment of a similar condition or a single patient encounter.

Batching would be limited to 25 qualified IDR items and services to ensure timely eligibility and payment determinations.

IDR Eligibility:

CMS states that eligibility determinations have “proven to be complex, time-consuming and resource-intensive” and have been a primary cause of delays in the processing of disputes.

Under the proposal, certified IDR entities will be required to determine eligibility within five business days of entity selection and notify disputing parties and the Departments.

The proposed rule establishes a departmental eligibility review process, to address systemic delays or extenuating circumstances which may be activated during periods of high dispute volumes. This measure allows the Departments to step in and offer additional support to expedite dispute processing.

Administrative Fee:

The Departments are recommending a change to the collection of the non-refundable administrative fee, proposing that it be paid directly to the Departments by the disputing parties rather than being collected by certified entities.  

Under the new guidance, the initiating party would be required to pay the administrative fee within two business days of the date of preliminary certified IDR entity selection, while the non-initiating party would be required to pay within two business days of receiving notice of an eligibility determination. Failure to pay in a timely manner by initiating party may result in closure of the dispute.  Failure to pay in a timely manner by the non-initiating party may result in that party’s offer not being considered received or debt collection procedures.

Furthermore, to promote equitable access and ensure fair cost-sharing, reduced administrative fees are being considered for parties in low-dollar disputes.

Extenuating Circumstances:

The proposal outlines extenuating circumstances under which time periods may be extended by the Departments, including systematic delays in dispute processing.

Public notices are to be posted regarding any extension of time periods due to extenuating circumstances.

IDR Registry:

Payers subject to the Federal IDR process are required to register with the Departments and provide information on the applicability of the process to items or services covered by their plans.

In turn, a registration number will be assigned to each plan or issuer to make it easier for parties initiating disputes to access the necessary information to confirm their disputes’ eligibility for the Federal IDR process.

In summary, these proposed changes are intended to enhance communication, operational efficiency, and accessibility within the Federal IDR process, ultimately improving its overall functionality for all involved parties. Please keep in mind that these are still proposed changes, and the final rules may differ. We will closely monitor the process and keep you informed about the status of these proposed rules to ensure compliance with any changes once they are finalized.

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