No Surprise: Independent Dispute Resolution Issues Remain Unresolved

No Surprise: Independent Dispute Resolution Issues Remain Unresolved

The No Surprises Act’s Independent Dispute Resolution process – deemed clunky by some – appears to be swamping the HHS system.

The No Surprises Act arbitrators are swamped, U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra told senators last week. “We are receiving 10 times the number of claims that anyone ever expected,” he said.

The Secretary was speaking at a hearing about the Independent Dispute Resolution process, or IDR, which the agency created as required by the No Surprises Act. While the Act protects patients from balance billing, that still leaves the question of how much health plans should pay providers for those out-of-network services.

Enter the IDR process, whereby third-party arbitrators decide a provider’s reimbursement by considering a number of factors outlined in the original Act and in subsequent regulations and guidance.

But the IDR process is completely overwhelmed, Becerra and other officials told lawmakers. A recent survey found that over 90 percent of emergency department claims initiated in the IDR process remain open.

The process is not quite a year old yet, so how did this train wreck happen?

Three reasons:

First, HHS underestimated how much the IDR would be used by providers to argue for reimbursement.

In the original rule, the Centers for Medicare & Medicaid Services (CMS) suggested that a little more than 17,000 claims would go to IDR in the course of a year. Last week, the trade journal Health Affairs estimated that 700,000 IDR claims have been initiated.

So, they were only off by about 683,000.

Now, numbers seem to indicate that at least half of the claims submitted aren’t actually eligible to be arbitrated. The problem is that there is no good way to weed those ineligible claims out early in the process.

Which brings us to the second problem: the processes put in place to manage the IDR. For example, the government IDR portal, meant to facilitate communication between all parties, got a late start, not launching until April of last year, and it has been at best, clunky. New features to the portal are added every month, but the IDR is still a very manual process, and difficult for all parties to use, including the beleaguered third-party arbitrators.

Finally, CMS has been required to continually change its IDR policies, particularly regarding the methodology the arbitrators should use to make their determinations, because of a series of lawsuit decisions emerging from the U.S. Federal Court in Texas.

In 30 seconds, here’s the rough-and-tumble life and times of the NSA’s IDR policy:

  • In September 2021, CMS published its interim final rule on the IDR process.
  • In January 2022, the policies in that regulation were put into play.
  • In March 2022, the Texas court ruled that the methodology that the arbitrators used did not align with the original statute. CMS pivoted, changed its guidance, and promised a new rule with the new guidance.
  • In August 2022, CMS published another final rule with the policy, as required by the Texas court.
  • On Feb. 6, 2023, the Texas court said that CMS did not go far enough in changing the arbitrators’ methodology. The court said, basically, that the arbitrators should not be beholden to any methodology.
  • On Feb. 10, CMS told the arbitrators to stop making decisions.
  • On Feb. 24, CMS told the arbitrators to restart making decisions, but only on claims on services provided before Oct. 25, 2022, because those decisions would fall under the first Texas court ruling.
  • Then, on the 17th of this month, CMS told the arbitrators they could continue making decisions on all No Surprises Act claims, but they needed to apply the second Texas ruling to claims on services provided on or after Oct. 25.

In the words of one senator last week, “it’s a big mess.”

Facebook
Twitter
LinkedIn

Matthew Albright

Matthew Albright is the chief legislative affairs officer at Zelis Healthcare. Previously, Albright was senior manager at CAQH CORE, and earlier, he was the acting deputy director of the Office of E-Health and Services for the Centers for Medicare & Medicaid Services.

Related Stories

Transparency in Coverage Final Rule

Transparency in Coverage Final Rule

The healthcare industry’s landscape shifted dramatically with the implementation of the Transparency in Coverage (TiC) Final Rule. For compliance professionals navigating this regulatory terrain, understanding

Read More

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

2026 IPPS Masterclass 3: Master MS-DRG Shifts and NTAPs

2026 IPPS Masterclass Day 3: MS-DRG Shifts and NTAPs

This third session in our 2026 IPPS Masterclass will feature a review of FY26 changes to the MS-DRG methodology and new technology add-on payments (NTAPs), presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 14, 2025
2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

2026 IPPS Masterclass Day 2: Master ICD-10-PCS Changes

This second session in our 2026 IPPS Masterclass will feature a review the FY26 changes to ICD-10-PCS codes. This information will be presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 13, 2025
2026 IPPS Masterclass 1: Master ICD-10-CM Changes

2026 IPPS Masterclass Day 1: Master ICD-10-CM Changes

This first session in our 2026 IPPS Masterclass will feature an in-depth explanation of FY26 changes to ICD-10-CM codes and guidelines, CCs/MCCs, and revisions to the MCE, presented by presented by nationally recognized ICD-10 coding expert Christine Geiger, MA, RHIA, CCS, CRC, with bonus insights and analysis from Dr. James Kennedy.

August 12, 2025

Trending News

Featured Webcasts

The Two-Midnight Rule: New Challenges, Proven Strategies

The Two-Midnight Rule: New Challenges, Proven Strategies

RACmonitor is proud to welcome back Dr. Ronald Hirsch, one of his most requested webcasts. In this highly anticipated session, Dr. Hirsch will break down the complex Two Midnight Rule Medicare regulations, translating them into clear, actionable guidance. He’ll walk you through the basics of the rule, offer expert interpretation, and apply the rule to real-world clinical scenarios—so you leave with greater clarity, confidence, and the tools to ensure compliance.

June 19, 2025
Open Door Forum Webcast Series

Open Door Forum Webcast Series

Bring your questions and join the conversation during this open forum series, live every Wednesday at 10 a.m. EST from June 11–July 30. Hosted by Chuck Buck, these fast-paced 30-minute sessions connect you directly with top healthcare experts tackling today’s most urgent compliance and policy issues.

June 11, 2025
Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Open Door Forum: The Changing Face of Addiction: Coding, Compliance & Care

Substance abuse is everywhere. It’s a complicated diagnosis with wide-ranging implications well beyond acute care. The face of addiction continues to change so it’s important to remember not just the addict but the spectrum of extended victims and the other social determinants and legal ramifications. Join John K. Hall, MD, JD, MBA, FCLM, FRCPC, for a critical Q&A on navigating substance abuse in 2025.  Register today and be a part of the conversation!

July 16, 2025

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

CYBER WEEK IS HERE! Don’t miss your chance to get 20% off now until Dec. 2 with code CYBER24