Skip to main content

EB Flash: No Surprises Act Independent Dispute Resolution Portal Reopens

Employee Benefits Alert

The Centers for Medicare & Medicaid Services (CMS) and other agencies today announced the immediate reopening of the Independent Dispute Resolution (IDR) portal for the initiation of certain new single and bundled disputes. The portal enables covered persons and entities to initiate IDR proceedings in which IDR entities determine (after unsuccessful open negotiations) the out-of-network payments for products and services subject to the No Surprises Act.

The IDR portal had been closed since August 3, 2023, for revisions needed to align with the court decisions in Texas Medical Association v. United States Department of Health and Human Services, No. 6:22-cv-450-JDK (Aug. 24, 2023 E.D. Tex.) (TMA III) and Texas Medical Association v. United States Department of Health and Human Services, No. 6:23-cv-59-JDK (Aug. 3, 2023 E.D. Tex.) (TMA IV), where plaintiffs challenged the IDR fee structure and methodology contained in federal regulations for determining the "qualified payment amount" used in rate determinations.

Those impacted by the temporary suspension of the IDR program will get more time to submit and respond to new disputes. In the following excerpt from the announcement, the agencies explain:

  • Parties for whom the IDR initiation deadline required by regulation falls on a date beginning on August 3, 2023, through November 3, 2023, will have until the 20th business day after the Federal IDR portal reopens for new dispute processing, which is November 3, 2023, to initiate a new dispute
  • For new disputes initiated between October 6, 2023, and November 3, 2023, the deadline for certified IDR entity selection will be 10 business days after initiation, and the deadline to submit fees and offers will remain 10 business days after certified IDR entity selection
  • Disputing parties that were engaged in certified IDR entity selection when the Federal IDR portal temporarily closed will have 10 business days from October 6, 2023, to agree on a certified IDR entity
  • All other deadlines under the Federal IDR process remain unchanged  

The agencies note that the processing of in-progress batched disputes, new batched disputes, and new air ambulance disputes "remains temporarily suspended while the Departments update batching and air ambulance guidance and operations to align with the district court's opinions and orders." Until otherwise instructed, the agencies recommend that disputing parties continue open negotiations in accordance with required timeframes.

In conjunction with today's announced reopening of the IDR portal, the agencies also posted the following Frequently Asked Questions (FAQs), which we will analyze in our next edition of The ERISA Edit newsletter:  

The agencies explain that they are conducting a "phased reopening" of the portal and expect to make additional announcements regarding other suspended dispute categories soon.

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.