In the early fall of 2021, the Department of Health and Human Services (HHS), the Department of Labor, and the Department of the Treasury (collectively the “Departments”), along with the Office of Personnel Management (“OPM”), released “Requirements Related to Surprise Billing, Part II,” its second interim final rule (the “IFR” or “Rule”) related to implementing provisions of the No Surprises Act.

The regulations in the Rule generally apply to group health plans and health insurance issuers for plan and policy years beginning on or after January 1, 2022. The rules regarding the certification of independent dispute resolution entities and select other dispute resolution entities are effective when the Federal Register publishes the Rule.

The IFR also includes good faith estimates for uninsured individuals and the independent and patient-provider dispute resolution processes. In addition, the Rule outlines the federal independent dispute resolution (IDR) process that out-of-network (OON) plans, issuers, and servicers utilize to determine the OON rate for items or services after an open negotiation is unsuccessful.

As a prerequisite to initiating this IDR process, parties involved in a dispute must initiate a 30-day “open negotiation” period to settle on a payment rate. Once an open negotiation period fails, either party may initiate the IDR process.

At this point, the parties may jointly choose a certified IDR entity with no conflicts of interest to resolve the dispute. However, if the parties cannot agree on a selection or if the selected entity has a conflict of interest, the Departments will select a certified IDR entity. After the parties or the Departments select a certified IDR entity, the parties submit their offers for payment with any documentation supporting its position.

The IDR entity deciding the matter must make the presumption that the qualifying payment amount (QPA) is appropriate. The IDR entity must consider any additional, credible information that the statute allows. The independent dispute resolution entity will only deviate from the offer closest to the QPA if this additional information clearly demonstrates that the value of the item or service is materially different from the QPA. Otherwise, the certified independent dispute resolution entity must choose the offer closest to the QPA.

After both offers and any supporting information and documentation are submitted, the certified IDR entity issues a binding decision selecting one of the two offers as the payment amount. The parties are also required to pay an administrative fee of $50 each for 2022. More importantly, the non-prevailing party must pay the certified IDR entity fee for using the IDR process.