Federal Independent Dispute Resolution (IDR) Process

ASA is aware that some insurers appear to be using the processes described in the new law to make payments based on unreasonably low Qualifying Payment Amounts (QPA).

If you receive a payment from the payer with an anesthesia conversion factor that you consider too low, the law and regulations permit you to initiate a 30-day open negotiation period with the payer to seek a more appropriate conversion factor. If that fails, you may then enter into the Independent Dispute Resolution (IDR) process. You need to initiate the 30-day open negotiation period in order to protect your right to later move to the IDR process. 

To initiate the open negotiation period, you must provide notice of your intent to do so to the insurer within 30 business days of receiving initial payment or notice of denial of payment for the service. As part of your response to the insurer, you can ask for the reason for the low payment. Once the insurer confirms that it is a result of the NSA, then you can inquire whether it is subject to the federal or state IDR process (The No Surprises Act is not intended to displace state balance billing laws). The open negotiation period begins on the day that you send the open negotiation notice. The government has provided sample forms at this link. You may initiate the open negotiation period by sending the notice to the insurer by mail or electronically under certain conditions. The implementing rules require that the insurer provide the contact information, including a telephone number and email address, for the appropriate person or office to initiate open negotiations. In many cases, this information is located at the bottom of the remittance document. Be sure to save copies of any correspondence you send to the insurer. Because this process is new, ASA does not yet have best practices to recommend for the 30-day negotiating period. These will be forthcoming as we receive additional information from ASA members. 

In countering the insurer’s initial payment amount, you may want to include information such as rates from a national recognized database such as FAIR Health, complexity of the case, and previously contracted rates. The results of ASA’s Annual Commercial Conversion Factor survey published each year in the October edition of the ASA Monitor® may also provide helpful information to you in this negotiation as it represents contracted in-network amounts nationally, by region and in some instances, by state.  The rule requires that the full 30-day period be exhausted before the disputed claim(s) may be brought to the IDR process. The IDR process will use an on-line portal that has not yet been publicly released as of the date of this FAQ.

Under the NSA IDR process, physicians are permitted to bundle claims for the arbiter’s consideration for the same or similar services from the same insurer.

For anesthesia claims, the arbiter will resolve the payment dispute using the anesthesia conversion factor. The current rules clearly provide that anesthesia services under the same CPT code may be bundled. However, the full extent of the services that may be bundled remains unresolved. ASA has inquired of the agencies whether anesthesiologists may bundle claims by body part, which have related CPT codes. ASA has also asked the agencies to permit anesthesiologists to bundle all their disputed anesthesia claims regardless of body part. ASA will provide updated information once it is received.

The current NSA rules do not include a requirement that an insurer continue to pay the rate determined by the arbiter for either the submitted CPT code or other CPT codes.

Physicians who continue to receive unreasonably low payments may need to again bring claims through the IDR process. If the claims are for the same CPT code(s) as previously taken to the IDR entity, the physician would need to wait until the conclusion of the 90-day “cooling off” period. However, because the losing party must pay the costs of the IDR process, it seems likely that both parties would consider the outcome of prior IDR processes when making subsequent offers. If the physician is concerned about the arbiter’s neutrality, a complaint may be filed regarding the arbiter and the physician should seek to utilize one of the other credentialed arbiters.  

If an insurance company fails to pay within 30 days after a final determination is made by the Independent Dispute Resolution (IDR) entity, providers may file a formal complaint with CMS here.

The CMS link provides a step-by-step online submission process and a No Surprises Help Desk phone number for any questions regarding the filing or status of a complaint. 

Billing complaints can be submitted by calling the No Surprises Help Desk at 1-800-985-3059 from 8 a.m. to 8 p.m. EST (open 7 days a week), through the online “submit a billing complaint” portal, or by emailing [email protected] or [email protected] with your concerns. 

Yes, this is an outrageous systemwide problem and violation of the No Surprises Act (NSA). The party that loses the IDR case must pay the winning party within 30 days of a decision.

All specialties across the US are experiencing delays. Due to the magnitude and frequency of this problem, ASA has raised the issue with Congress and the regulatory agencies. During the ASA’s Legislative Conference, 500 anesthesiologists met with lawmakers, and this was one of the priority issues.  

As part of a pending lawsuit, the Center for Consumer Information & Insurance Oversight’s (CCIIO) leadership acknowledged the problem of delayed payments. CCIIO reported that between January 2022 and May 2023, 1,300, complaints against plans and issuers were filed. Of these:  

• Most closed cases where a violation of an NSA provision was found were violations of an issuer’s or plan’s obligation to pay providers in a timely manner.  

• Approximately 750 (58%) were investigated through standard complaint investigations.  

• Approximately 550 (42%) were investigated through a QPA audit or targeted market conduct  
  examination (MCE) of a plan or issuer.  

• Approximately 350 (27%) of the claims are closed and of these approximately 90 (26%) resulted in a violation finding where the issuer or plan was directed to conduct a self-audit and remedy the issue by, for example, reprocessing claims or updating internal operations to ensure that the required disclosures are included in initial claim payments or denials  

• Remaining complaints are open and under investigation, including QPA audits, MCEs, and complaint investigations  

We suspect the above number of complaints is low. It is likely that other complaints are being referred to the Department of Labor and to states.  

This ongoing problem reflects just one of the major flaws in the implementation of the NSA. Moreover, relying on insurers to self-correct is unacceptable. As ASA continues to raise these issues with the government and Congress, physicians and practices should continue to file complaints with the government to document the insurer’s gaming of the system. The resources to use include:  

• Complaint form available at https://www.cms.gov/nosurprises/policies-and-resources/providers-submit-a-billing-complaint  

• No Surprises Help Desk at 1-800-985-3059 to submit a question or complaint  

• Other NSA Provider requirements and resources | CMS