October 24, 2023
Centers for Medicare & Medicaid Services
Department of Health and Human Services
Aten�on: CMS-9890-P
P.O. Box 8016
Bal�more, MD 21244-8016
Submited online via www.regula�ons.gov
Re: File Code CMS-9890-P Federal Independent Dispute Resolu�on (IDR) Process Administra�ve Fee andCer�ﬁed IDR En�ty Fee Ranges Proposed Rule
Dear Sir/Madam:
On behalf of the American Associa�on of Oral and Maxillofacial Surgeons (AAOMS), which represents
more than 9,000 oral and maxillofacial surgeons (OMSs) in the United States, thank you for theopportunity to comment on the Federal Independent Dispute Resolu�on (IDR) Process Administra�veFee and Cer�ﬁed IDR En�ty Fee Ranges Proposed Rule, as published in the September 26, 2023, FederalRegister (Vol. 88, No. 185, pages 65888-65907). While AAOMS appreciates Agency eﬀorts to detail amethod for se�ng and upda�ng the fees linked to the IDR process, we have reserva�ons about theproposed rule's omission of clear guidelines regarding the batching of claims for arbitra�on.
One of the key provisions of the No Surprises Act (the Act) 1 is the establishment of an independent
dispute resolu�on process, wherein healthcare providers and insurers can resolve payment disputes
through arbitra�on. While the IDR process aims to oﬀer an equitable and streamlined way to resolve
payment disagreements, its prac�cal implica�ons have proven challenging for many healthcare
providers. Aside from the opera�onal and ﬁnancial burdens associated with the IDR, many of the processrules and requirements may eﬀec�vely limit a provider’s ability to seek payment resolu�on under certain
circumstances or even discourage providers from pursing arbitra�on altogether.
Naviga�ng the complexi�es of batching eligible items and services for considera�on in a single payment
dispute has been one such obstacle. The Act outlines general batching criteria under the IDR process
which includes, among other things, that items or services may be considered as part of a single
determina�on when “related to the treatment of a similar condi�on”. The regulatory batching standard

Public Law 116-260, Consolidated Appropria�ons Act, 2021- Division BB- Private Health Insurance and Public
Health Provisions Title I- No Surprises Act. htps://www.congress.gov/116/plaws/publ260/PLAW-116publ260.pdf
1

related to same or similar items or services, as established through the 2021 interim ﬁnal rules 2 andsubsequent guidance 3 eﬀec�vely narrowed the Act’s provisions on batching, limi�ng eligible items andservices to those billed under the same or comparable service codes. HHS and the Departments of Laborand Treasury (the Departments) have indicated this standard was adopted to avoid combina�ons ofunrelated or dissimilar claims through the IDR and to decrease the complexity of eligibility and payment
determina�ons for arbitrators.
Although the batching standard for the IDR process has recently changed, AAOMS notes the same orsimilar batching rules have been par�cularly challenging for OMSs rendering services that fall within thescope of the NSA. For example, many uniquely oral and maxillofacial surgical procedures, such as thesurgical correc�on of congenital craniofacial anomalies, orthognathic surgery and reconstruc�ve
procedures of the face and jaws to correct accidental injury, involve the billing and repor�ng of mul�ple,dis�nct procedure and diagnosis codes. In the event of a payment dispute comprising several of theitems or services involved in this episode of care, the regulatory batching rules would prohibit an OMS
from seeking resolu�on as a single determina�on despite the fact the services were furnished to treat
the same condi�on or diagnosis. Such limita�ons on the availability of the IDR process are bothadministra�vely challenging and cost prohibi�ve, par�cularly for smaller prac�ces or independentprac��oners.
The change in the batching standard, as indicated in the proposed rule would require IDR en��es to rely
solely on statutory language 4 to determine what items and services may be eligible for batching. AAOMS
believes clariﬁca�on on batching with respect to this language, as well as updated guidance for dispu�ngpar�es and IDR en��es may be warranted.
An "episode of care" or "care incident" is a concept that describes a series or group of related healthcare
services provided to a pa�ent based on a par�cular medical condi�on or treatment need over a speciﬁc
Requirements Related to Surprise Billing; Part I (published July 13, 2021)
htps://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billingpart-i
Requirements Related to Surprise Billing; Part II (published October 7, 2021)
htps://www.federalregister.gov/documents/2021/10/07/2021-21441/requirements-related-to-surprise-billingpart-ii
3
Federal Independent Dispute Resolu�on (IDR) Process Guidance for Cer�ﬁed IDR En��es (issued August 2022)
htps://www.hhs.gov/guidance/sites/default/ﬁles/hhs-guidance-documents/Technical-Assistance-IDR-En��esAugust-2022.pdf
Federal Independent Dispute Resolu�on (IDR) Process Guidance for Dispu�ng Par�es (issued October 2022).
htps://www.cms.gov/ﬁles/document/rev-102822-idr-guidance-dispu�ng-par�es.pdf
4
As outlined under the No Surprises Act: In General—Under the IDR process, the Secretary shall specify criteria
under which mul�ple qualiﬁed IDR dispute items and services are permited to be considered jointly as part of asingle determina�on by an en�ty for purposes of encouraging the eﬃciency (including minimizing costs) of the IDR
process. Such items and services may be so considered only if— ‘‘(i) such items and services to be included in suchdetermina�on are furnished by the same provider or facility; ‘‘(ii) payment for such items and services is required
to be made by the same group health plan or health insurance issuer; ‘‘(iii) such items and services are related tothe treatment of a similar condi�on; and ‘‘(iv) such items and services were furnished during the 30 day period
following the date on which the ﬁrst item or service included with respect to such determina�on was furnished oran alterna�ve period as determined by the Secretary, for use in limited situa�ons, such as by the consent of thepar�es or in the case of low-volume items and services, to encourage procedural eﬃciency and minimize healthplan and provider administra�ve costs. htps://www.congress.gov/116/bills/hr133/BILLS-116hr133enr.pdf
22period. Instead of viewing healthcare services as isolated events, an episode of care looks at them inaggregate, a concept familiar to both providers and payers. Batching rules based on “episodes of care”
would align with the statutory language of the Act and may provide a more holis�c and individualized
framework for addressing disputes in the federal IDR process. It may also mi�gate several of theopera�onal and ﬁnancial challenges heretofore experienced by providers seeking arbitra�on for batcheditems and services related to a single incident of care. This includes the submission of o�en duplica�ve
informa�on required to support separate payment disputes for mul�ple, dis�nct services furnishedduring a single incident of care, as well as poten�al cost limita�ons with ini�a�ng single disputes forsmaller-value claims or services. As such, AAOMS encourages HHS and the Departments of Labor andTreasury to consider parameters to clarify “treatment of a similar condition” as an episode of care inrela�on to treatment of the pa�ent’s condi�on or diagnosis.
We are also concerned that higher administra�ve fees may preclude many healthcare providers frompar�cipa�on in the IDR process. If the administra�ve fee is signiﬁcant, especially rela�ve to the disputed
amount, providers may be dissuaded from pursuing the IDR process, regardless of whether the payment
determina�on is for a single service or a batched episode of care. This is par�cularly true for smaller
claims where the fee might oﬀset any poten�al gains from a favorable resolu�on.
Further, the inherent uncertainty in the IDR process means that providers run the risk of not receiving
the payment they believe to be appropriate, even a�er incurring the costs of the dispute resolu�on.
While larger healthcare en��es might have the ﬁnancial resources to absorb higher administra�ve fees
and lower reimbursements as rou�ne costs of doing business, it may not be tenable for smaller
providers or individual prac��oners, such as many OMSs are.
Thank you for your considera�on of these comments. Please contact Patricia Serpico, AAOMS Director ofHealth Policy, Quality and Reimbursement, with any ques�ons at 800-822-6637, ext. 4394 or
pserpico@aaoms.org.
Sincerely,

Mark A. Egbert, DDS, FACSAAOMS President

Adam S. Pits, DDS, MD, FACS
Chair, AAOMS Commitee on Healthcare Policy, Coding and Reimbursement3