Feds Issue Surprise Billing Proposed Rule That Would Triple Dispute Resolution Fee

The U.S. Departments of the Treasury, Labor, and Health and Human Services issued a new proposed rule Sept. 20, that outlines policies related to the No Surprises Act (NSA) independent dispute resolution (IDR) process administrative fee, which would triple the current fee. The IDR process was suspended following recent court rulings, but the government also announced Sept. 21 that IDR entities may resume processing disputes submitted on or before Aug. 3, 2023.

The proposed rule outlines a methodology for calculating the administrative fee required to be paid by both providers and payers to enter the IDR process. The current fee is $50, but the departments propose a $150 fee beginning Jan. 1, 2024. Their methodology considers the expected cost of operating the federal IDR process, as well as the number of disputes expected to be processed in the year.

The departments indicate the final administrative fee may differ from the proposed $150 if additional data on expenditures and collections become available between the publication of the proposed and final rules. It is therefore possible that the finalized fee may be greater than $150. They also propose to allow the fee to be updated more or less frequently than annually, using the rulemaking process.

The departments previously increased the IDR administrative fee it set at $50 to $350 on Jan. 1, 2023, with less than two weeks advance notice to stakeholders. The Texas Medical Association (TMA), Texas Radiological Society, Houston Radiology Associated and others, brought a lawsuit against the federal government in the U.S. District Court for the Eastern District of Texas that charged the government’s fee increase violated federal law. The court ruled for American College of Radiology® (ACR®) members and other physicians, deciding that the government’s rule implementing the NSA violated federal law on Aug. 3, and the administrative fee was lowered back to $50.

The government, on Sept. 21, instructed IDR entities to resume processing disputes submitted on or before the Aug. 3 court ruling. The announcement states, “For disputes initiated prior to the TMA III order, disputing parties have already supplied a QPA, and certified IDR entities should continue to consider the supplied QPA among other factors … when selecting between the offers made by the disputing parties to determine which offer best represents the value of the items or services at issue.”

In another lawsuit filed by the TMA, the court determined that the government was incorrectly permitting insurers to use a faulty methodology when calculating their median in-network rate, known as the qualifying payment amount (QPA). As a result, new regulations on the QPA calculation and its impact on the IDR process will need to be created to comply with the court decision.

The TMA rulings do not impact the patient protections included in the NSA that the ACR advocated for and continues to fully support, nor does it raise patient out-of-pocket costs.

For more information or if you have questions, contact Katie Keysor, ACR Senior Director of Economic Policy.