65888 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

Individuals who want to testify in 

person at the public hearing must send 

an email to publichearings@irs.gov to 

have your name added to the building 

access list. The subject line of the email 

must contain the regulation number 

REG–105954–22 and the language 

TESTIFY In Person. For example, the 

subject line may say: Request to 

TESTIFY In Person at Hearing for REG– 

105954–22. 

Individuals who want to testify by 

telephone at the public hearing must 

send an email to publichearings@irs.gov 

to receive the telephone number and 

access code for the hearing. The subject 

line of the email must contain the 

regulation number REG–105954–22 and 

the language TESTIFY Telephonically. 

For example, the subject line may say: 

Request to TESTIFY Telephonically at 

Hearing for REG–105954–22. 

Individuals who want to attend the 

public hearing in person without 

testifying must also send an email to 

publichearings@irs.gov to have your 

name added to the building access list. 

The subject line of the email must 

contain the regulation number REG– 

105954–22 and the language ATTEND 

In Person. For example, the subject line 

may say: Request to ATTEND Hearing In 

Person for REG–105954–22. Requests to 

attend the public hearing must be 

received by 5 p.m. ET by October 20, 

2023. 

Individuals who want to attend the 

public hearing by telephone without 

testifying must also send an email to 

publichearings@irs.gov to receive the 

telephone number and access code for 

the hearing. The subject line of the 

email must contain the regulation 

number REG–105954–22 and the 

language ATTEND Hearing 

Telephonically. For example, the 

subject line may say: Request to 

ATTEND Hearing Telephonically for 

REG–105954–22. Requests to attend the 

public hearing must be received by 5 

p.m. ET by October 20, 2023. 

Hearings will be made accessible to 

people with disabilities. To request 

special assistance during a hearing 

please contact the Publications and 

Regulations Branch of the Office of 

Associate Chief Counsel (Procedure and 

Administration) by sending an email to 

publichearings@irs.gov (preferred) or by 

telephone at (202) 317–6901 (not a tollfree number) by October 20, 2023. Any 

questions regarding speaking at or 

attending a public hearing may also be 

emailed to publichearings@irs.gov. 

Oluwafunmilayo A. Taylor, 

Section Chief, Publications and Regulations 

Branch, Associate Chief Counsel, (Procedure 

and Administration). 

[FR Doc. 2023–20840 Filed 9–25–23; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 54 

[REG 115762–23] 

RIN 1545–BQ94 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Part 2590 

RIN 1210–AC24 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

45 CFR Part 149 

[CMS–9890–P] 

RIN 0938–AV39 

Federal Independent Dispute 

Resolution (IDR) Process 

Administrative Fee and Certified IDR 

Entity Fee Ranges 

AGENCY: Internal Revenue Service, 

Department of the Treasury; Employee 

Benefits Security Administration, 

Department of Labor; Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services. 

ACTION: Proposed rule. 

SUMMARY: This document sets forth 

proposed rules related to the fees 

established by the No Surprises Act for 

the Federal independent dispute 

resolution (IDR) process, as established 

by the Consolidated Appropriations Act, 

2021 (CAA). These proposed rules 

would amend existing regulations to 

provide that the administrative fee 

amount charged by the Department of 

the Treasury, the Department of Labor, 

and the Department of Health and 

Human Services (the Departments) to 

participate in the Federal IDR process, 

and the ranges for certified IDR entity 

fees for single and batched 

determinations will be set by the 

Departments through notice and 

comment rulemaking. These proposed 

rules would also set forth the 

methodology used to calculate the 

administrative fee and the 

considerations used to develop the 

certified IDR entity fee ranges. This 

document also proposes the amount of 

the administrative fee for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024. Finally, this document 

proposes the certified IDR entity fee 

ranges for disputes initiated on or after 

the later of the effective date of these 

rules or January 1, 2024. In accordance 

with 5 U.S.C. 553(b)(4), a summary of 

this rule may be found at https://

www.regulations.gov/. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below by 

October 26, 2023. 

ADDRESSES: Written comments may be 

submitted to the addresses specified 

below. Any comment that is submitted 

will be shared among the Departments. 

Please do not submit duplicates. 

Comments will be made available to 

the public. Warning: Do not include any 

personally identifiable information 

(such as name, address, or other contact 

information) or confidential business 

information that you do not want 

publicly disclosed. Comments are 

posted on the internet exactly as 

received and can be retrieved by most 

internet search engines. No deletions, 

modifications, or redactions will be 

made to the comments received, as they 

are public records. Comments may be 

submitted anonymously. 

In commenting, refer to file code 

CMS–9890–P. Because of staff and 

resource limitations, the Departments 

cannot accept comments by facsimile 

(FAX) transmission. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to https://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–9890–P, P.O. Box 8016, Baltimore, 

MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65889 

1Public Law 116–260 (Dec. 27, 2020). 

2 26 U.S.C. 9816, et seq. 

3 29 U.S.C. 1185e, et seq. 

4 42 U.S.C. 300gg–111, et seq. 

5Section 102(d)(1) of the No Surprises Act 

amended the Federal Employees Health Benefits 

Act, 5 U.S.C. 8901 et seq., by adding a new 

subsection (p) to 5 U.S.C. 8902. Under this new 

provision, each FEHB Program contract must 

require a carrier to comply with requirements 

described in sections 9816 and 9817 of the Code, 

sections 716 and 717 of ERISA, and sections 

2799A–1 and 2799A–2 of the PHS Act (as 

applicable) in the same manner as these provisions 

apply with respect to a group health plan or health 

insurance issuer offering group or individual health 

insurance coverage. 

6 26 U.S.C. 9816, et seq. 

7 29 U.S.C. 1185e, et seq. 

8 42 U.S.C. 300gg–111, et seq. 

9 26 U.S.C. 9816(c)(8). 

10 29 U.S.C. 1185e(c)(8). 

11 42 U.S.C. 300gg–111(c)(8). 

12 26 U.S.C. 9817, et seq. 

13 29 U.S.C. 1185f, et seq. 

14 42 U.S.C. 300gg–112, et seq. 

15 42 U.S.C. 300gg–131–139. 

16 86 FR 36872 (July 13, 2021). 

17 86 FR 55980 (October 7, 2021). 

18 87 FR 52618 (August 26, 2022). 

19 26 U.S.C. 9816, et seq. and 26 U.S.C. 9817, et 

seq. 

20 29 U.S.C. 1185e, et seq. and 29 U.S.C. 1185f, 

et seq. 

21 42 U.S.C. 300gg–111, et seq. and 42 U.S.C. 

300gg–112, et seq. 

22References to a ‘‘participating facility’’ in this 

preamble mean a ‘‘participating health care 

facility,’’ as defined at 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30. 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–9890–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Shira B. McKinlay, Internal Revenue 

Service, Department of the Treasury, 

202–317–5500; 

Shannon Hysjulien or Rebecca Miller, 

Employee Benefits Security 

Administration, Department of Labor, 

202–693–8335; and 

Jacquelyn Rudich or Nora Simmons, 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 301–492–5211. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: 

Comments received before the close of 

the comment period will be available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. The Departments will post 

comments on the following website as 

soon as possible after they have been 

received: https://www.regulations.gov. 

Follow the search instructions on that 

website to view public comments. The 

Departments will not post on 

Regulations.gov public comments that 

make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm an 

individual. The Departments continue 

to encourage individuals not to submit 

duplicative comments. The Departments 

will post acceptable comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. 

I. Background 

A. Preventing Surprise Medical Bills and 

Establishing the Federal IDR Process 

Under the Consolidated Appropriations 

Act, 2021 

On December 27, 2020, the CAA was 

enacted.1 Title I, also known as the No 

Surprises Act, and title II 

(Transparency) of Division BB of the 

CAA amended chapter 100 of the 

Internal Revenue Code (Code), Part 7 of 

the Employee Retirement Income 

Security Act (ERISA), and title XXVII of 

the Public Health Service Act (PHS Act). 

The No Surprises Act provides Federal 

protections against surprise billing by 

limiting out-of-network cost sharing and 

prohibiting balance billing in many of 

the circumstances in which surprise 

bills most frequently arise. In particular, 

the No Surprises Act added new 

provisions applicable to group health 

plans and health insurance issuers 

offering group or individual health 

insurance coverage. Section 102 of the 

No Surprises Act added section 9816 of 

the Code,2 section 716 of ERISA,3 and 

section 2799A–1 of the PHS Act,4 which 

contain limitations on cost sharing and 

requirements regarding the timing of 

initial payments and notices of denial of 

payment by plans and issuers for 

emergency services furnished by 

nonparticipating providers and 

nonparticipating emergency facilities, 

and for non-emergency services 

furnished by nonparticipating providers 

for patient visits to participating health 

care facilities, generally defined as 

hospitals, hospital outpatient 

departments, critical access hospitals, 

and ambulatory surgical centers.5

Section 103 of the No Surprises Act 

established a Federal IDR process that 

plans and issuers and nonparticipating 

providers and facilities may utilize to 

resolve certain disputes regarding outof-network rates under section 9816 of 

the Code,6 section 716 of ERISA,7 and 

section 2799A–1 of the PHS Act.8

Section 9816(c)(8) of the Code,9 section 

716(c)(8) of ERISA,10 and section 

2799A–1(c)(8) of the PHS Act 11 provide 

that each party to a determination under 

the Federal IDR process shall pay a fee 

for participating in the Federal IDR 

process, and the amount of the fee is an 

amount established by the Departments 

in a manner such that the total amount 

of fees paid by all parties is estimated 

to be equal to the amount of 

expenditures estimated to be made by 

the Departments for the year in carrying 

out the Federal IDR process. 

Section 105 of the No Surprises Act 

added section 9817 of the Code,12

section 717 of ERISA,13 and section 

2799A–2 of the PHS Act.14 These 

sections contain limitations on cost 

sharing and requirements for the timing 

of initial payments and notices of denial 

of payment by plans and issuers for air 

ambulance services furnished by 

nonparticipating providers of air 

ambulance services, and allow plans 

and issuers and nonparticipating 

providers of air ambulance services to 

utilize the Federal IDR process. 

The No Surprises Act also added 

provisions to title XXVII of the PHS Act 

in a new part E 15 that apply to health 

care providers, facilities, and providers 

of air ambulance services, such as 

prohibitions on balance billing for 

certain items and services and 

requirements related to disclosures 

about balance billing protections. 

The Departments of the Treasury, 

Labor, and Health and Human Services 

(HHS) (the Departments), along with the 

Office of Personnel Management (OPM), 

have issued rulemakings in 2021 and 

2022 to implement various provisions of 

the No Surprises Act. More specifically 

relevant to this proposed rulemaking, 

the Departments and OPM issued 

interim final rules (July 2021 interim 

final rules 16 and October 2021 interim 

final rules 17) and final rules (August 

2022 final rules 18) implementing 

provisions of sections 9816 and 9817 of 

the Code,19 sections 716 and 717 of 

ERISA,20 and sections 2799A–1 and 

2799A–2 of the PHS Act.21 These rules 

implement provisions to protect 

consumers from surprise medical bills 

for emergency services, non-emergency 

services furnished by nonparticipating 

providers for patient visits to 

participating facilities 22 in certain 

circumstances, and air ambulance 

services furnished by nonparticipating 

providers of air ambulance services. 

These rules also implement provisions 

to establish a Federal IDR process to 

determine payment amounts when there 

is a dispute between plans or issuers 

and providers, facilities, or providers of 

air ambulance services about the out-ofnetwork rate for these services if a 

specified State law as defined in 26 CFR 

54.9816–3T, 29 CFR 2590.716–3, and 45 


lotter on DSK11XQN23PROD with PROPOSALS1
65890 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

23The interim final rules also include interim 

final regulations under 5 U.S.C. 8902(p) issued by 

OPM that specify how certain provisions of the No 

Surprises Act apply to health benefit plans offered 

by carriers under the Federal Employees Health 

Benefits Act. These provisions apply to carriers in 

the FEHB Program with respect to contract years 

beginning on or after January 1, 2022. The 

disclosure requirements at 45 CFR 149.430 

regarding patient protections against balance billing 

are applicable as of January 1, 2022. 

24 26 U.S.C. 9816(c) and 26 U.S.C. 9817(b). 

25 29 U.S.C. 1185e(c) and 29 U.S.C. 1185f(b). 

26 42 U.S.C. 300gg–111(c) and 42 U.S.C. 300gg– 

112(b). 

27A health care facility, in the context of nonemergency services, is defined as (1) a hospital (as 

defined in section 1861(e) of the Social Security 

Act), (2) a hospital outpatient department, (3) a 

critical access hospital (as defined in section 

1861(mm)(1) of the Social Security Act), or (4) an 

ambulatory surgical center described in section 

1833(i)(1)(A) of the Social Security Act. Code 

section 9816(b)(2)(A)(ii), ERISA section 

716(b)(2)(A)(ii), and PHS Act section 2799A– 

1(b)(2)(A)(ii). 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30. 

28 26 U.S.C. 9816(c)(5)(F)(i). 

29 29 U.S.C. 1185e(c)(5)(F)(i). 

30 42 U.S.C. 300gg–111(c)(5)(F)(i). 

31 In the case of a batched dispute, the party with 

fewest determinations in its favor is considered the 

non-prevailing party and is responsible for paying 

the certified IDR entity fee. In the event that each 

party prevails in an equal number of 

determinations, the certified IDR entity fee will be 

split evenly between the parties. 86 FR 55980, 

56001. 

32 26 CFR 54.9816–8T(e)(2)(vii), 29 CFR 

2590.716–8(e)(2)(vii), and 45 CFR 149.510(e)(2)(vii). 

33 Id. 

34 Id. 35 26 U.S.C. 9816(c)(8). 

36 29 U.S.C. 1185e(c)(8). 

37 42 U.S.C. 300gg–111(c)(8). 

38 26 U.S.C. 9816(c)(8)(B). 

39 29 U.S.C. 1185e(c)(8)(B). 

40 42 U.S.C. 300gg–111(c)(8)(B). 

41 26 CFR 54.9816–8T(d)(2)(ii), 29 CFR 2590.716– 

8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii). 

42Centers for Medicare & Medicaid Services 

(September 30, 2021). Calendar Year 2022 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/CCIIO/Resources/Regulationsand-Guidance/Downloads/Technical-GuidanceCY2022-Fee-Guidance-Federal-IndependentDispute-Resolution-Process-NSA.pdf. 

43Centers for Medicare & Medicaid Services 

(October 31, 2022). Calendar Year 2023 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

CFR 149.30 or an applicable All-Payer 

Model Agreement under section 1115A 

of the Social Security Act does not 

provide a method for determining the 

total amount payable. 

The July 2021 interim final rules and 

October 2021 interim final rules 

generally apply to plans and issuers 

(including grandfathered health plans) 

for plan years (in the individual market, 

policy years) beginning on or after 

January 1, 2022, and to health care 

providers, facilities, and providers of air 

ambulance services for items and 

services furnished during plan years (in 

the individual market, policy years) 

beginning on or after January 1, 2022.23

The August 2022 final rules became 

effective October 25, 2022, and are 

applicable for items or services 

provided or furnished on or after 

October 25, 2022 for plan years (in the 

individual market, policy years) 

beginning on or after January 1, 2022. 

B. October 2021 Interim Final Rules and 

Related Guidance 

The October 2021 interim final rules 

implement the Federal IDR process 

under sections 9816(c) and 9817(b) of 

the Code,24 sections 716(c) and 717(b) of 

ERISA,25 and sections 2799A–1(c) and 

2799A–2(b) of the PHS Act.26 The rules 

apply to emergency services, nonemergency services furnished by 

nonparticipating providers for patient 

visits to certain types of participating 

health care facilities 27 (unless an 

individual has been provided notice and 

waived the individual’s surprise billing 

protections, in accordance with 45 CFR 

149.410 or 149.420, as applicable), and 

air ambulance services furnished by 

nonparticipating providers of air 

ambulance services, for situations in 

which neither a specified State law as 

defined in 26 CFR 54.9816–3T, 29 CFR 

2590.716–3, and 45 CFR 149.30 nor an 

All-Payer Model Agreement under 

section 1115A of the Social Security Act 

applies. 

To implement the Federal IDR 

process, the October 2021 interim final 

rules include requirements governing 

the costs of the Federal IDR process. 

Under section 9816(c)(5)(F)(i) of the 

Code,28 section 716(c)(5)(F)(i) of 

ERISA,29 section 2799A–1(c)(5)(F)(i) of 

the PHS Act,30 and the October 2021 

interim final rules, the party whose offer 

is not selected is responsible for the 

payment of the fee charged by the 

certified IDR entity (certified IDR entity 

fee).31 Under the October 2021 interim 

final rules, as a condition of 

certification, the certified IDR entity 

must notify the Departments of the 

amount of the certified IDR entity fees 

it intends to charge for payment 

determinations, which is limited to a 

fixed certified IDR entity fee amount for 

single determinations and a separate 

fixed certified IDR entity fee amount for 

batched determinations.32 Each of these 

fixed certified IDR entity fees must be 

within a range set forth in guidance by 

the Departments, unless the certified 

IDR entity receives written approval 

from the Departments to charge a 

certified IDR entity fee outside that 

range.33 The October 2021 interim final 

rules describe the considerations that 

the Departments will use to develop the 

certified IDR entity fee ranges, including 

the anticipated time and resources 

needed for certified IDR entities to meet 

the requirements of those interim final 

rules, the volume of payment 

determinations, and the adequacy of the 

Federal IDR process capacity to 

efficiently handle the volume of IDR 

initiations and payment determinations, 

and discuss that the Departments will 

review and update the allowable fee 

ranges annually based on these factors, 

the impact of inflation, and other cost 

increases. Those rules also provide that 

on an annual basis, the certified IDR 

entity may update its certified IDR 

entity fees within the ranges set forth in 

current guidance and seek approval 

from the Departments to charge fixed 

certified IDR entity fees beyond the 

upper or lower limits for certified IDR 

entity fees.34

Additionally, pursuant to section 

9816(c)(8) of the Code,35 section 

716(c)(8) of ERISA,36 and section 

2799A–1(c)(8) of the PHS Act,37 and 

under the October 2021 interim final 

rules, each party must pay an 

administrative fee for participating in 

the Federal IDR process. The 

administrative fee is established in 

guidance in a manner so that, in 

accordance with the requirements of 

section 9816(c)(8)(B) of the Code,38

section 716(c)(8)(B) of ERISA,39 and 

section 2799A–1(c)(8)(B) of the PHS 

Act,40 the total administrative fees paid 

for a year are estimated to be equal to 

the amount of expenditures estimated to 

be made by the Departments to carry out 

the Federal IDR process for that year.41

Contemporaneously with the October 

2021 interim final rules, the 

Departments released the Calendar Year 

2022 Fee Guidance for the Federal 

Independent Dispute Resolution Process 

Under the No Surprises Act (October 

2021 guidance), setting the 

administrative fee for both parties to a 

dispute at $50 per party.42 The October 

2021 guidance also established the 

range for fixed certified IDR entity fees 

for single determinations as $200–$500, 

and the range for fixed certified IDR 

entity fees for batched determinations as 

$268–$670, unless otherwise approved 

by the Departments. In October 2022, 

the Departments released the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process 

Under the No Surprises Act (October 

2022 guidance), again setting the 

administrative fee for both parties to a 

dispute at $50 per party.43 The October 

2022 guidance explained that the data 

available regarding take-up and usage of 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65891 

44Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

45Centers for Medicare & Medicaid Services 

(November 21, 2022). Notice of the Federal 

Independent Dispute Resolution (IDR) Team 

Technical Assistance to Certified Independent 

Dispute Resolution Entities (IDREs) in the Dispute 

Eligibility Determination Process. https://

www.cms.gov/files/document/idre-eligibilitysupport-guidance-11212022-final-updated.pdf. 

46Tex. Med. Ass’n, v. U.S. Dep’t of Health and 

Human Servs., Case No. 6:22–cv–00450–JDK (E.D. 

Tex. November 30, 2022). 

47 86 FR 36872 (July 13, 2021). 

48See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs, 

No. 6:22–cv–00450–JDK (E.D. Tex. August 24, 

2023). 

49Specifically, the Texas District Court vacated 

certain subprovisions of 45 CFR 149.130 and 

149.140, 26 CFR 54.9816–6T and 54.9817–1T, and 

29 CFR 2590.716–6 and 2590.717–1. The Texas 

District Court also vacated 5 CFR 890.114(a). 

50Specifically, the Texas District Court vacated 

FAQs 14 and 15 of FAQs about Affordable Care Act 

and Consolidated Appropriations Act, 2021 

Implementation Part 55 (August 19, 2022), as well 

as portions of Technical Guidance for Certified IDR 

Entities at 2–3 (August 18, 2022). 

51Tex. Med. Ass’n, v. U.S. Dep’t of Health and 

Human Servs., Case No. 6:23–cv–00059–JDK (E.D. 

Tex. January 30, 2023). 

52See Motion for Summary Judgment and Reply 

in Support of Summary Judgment, p. 1, Tex. Med. 

Ass’n. v. U.S. Dep’t of Health & Hum. Servs, No. 

6:23–cv–00059–JDK (E.D. Tex. March 27, 2023). 

https://ecf.txed.uscourts.gov/doc1/175113317945. 

53See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs, 

No. 6:23–cv–00059–JDK (E.D. Tex. August 3, 2023). 

54Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

55Specifically, the Texas District Court vacated 

the requirement under 26 CFR 54.9816– 

8T(c)(3)(i)(C), 29 CFR 2590.716–8(c)(3)(i)(C), and 45 

CFR 149.510(c)(3)(i)(C) that for a qualified IDR item 

and service to be considered the same or similar 

item and service, it must be billed under the same 

service code or a comparable code under a different 

procedural code system, such as the Current 

Procedural Terminology (CPT) codes with 

modifiers, if applicable, Healthcare Common 

Procedure Coding System (HCPCS) with modifiers, 

if applicable, or Diagnosis-Related Group (DRG) 

codes with modifiers, if applicable. 

the Federal IDR process was not reliable 

enough to support a change to either the 

estimated number of payment 

determinations for which administrative 

fees would be paid or the estimated 

ongoing program costs for 2023; 

therefore, the 2023 administrative fee 

amount due from each party for 

participating in the Federal IDR process 

would remain the same as the 2022 

administrative fee. The October 2022 

guidance permits certified IDR entities 

to charge a fee between $200 and $700 

for single determinations and between 

$268 and $938 for batched 

determinations, unless the Departments 

otherwise grant approval for the 

certified IDR entity to charge a fee 

outside of these ranges. In addition, to 

account for the heightened workload for 

batched determinations, the October 

2022 guidance permits a certified IDR 

entity to charge the following 

percentage of its approved certified IDR 

entity batched determination fee 

(‘‘batching percentage’’) for batched 

determinations, which are based on the 

number of line items initially submitted 

in the batch: 

• 2–20 line items: 100 percent of the 

approved batched determination fee; 

• 21–50 line items: 110 percent of the 

approved batched determination fee; 

• 51–80 line items: 120 percent of the 

approved batched determination fee; 

and 

• 81 line items or more: 130 percent 

of the approved batched determination 

fee. 

In December 2022, the Departments 

released the Amendment to the 

Calendar Year 2023 Fee Guidance for 

the Federal Independent Dispute 

Resolution Process Under the No 

Surprises Act (December 2022 

guidance), which amended the $50 per 

party administrative fee set in the 

October 2022 guidance to $350 for 

calendar year 2023.44 The change in the 

administrative fee for 2023 reflected the 

additional costs to the Departments to 

carry out the Federal IDR process as a 

result of the Departments’ enhanced role 

in calendar year 2023 in conducting preeligibility reviews to allow the certified 

IDR entities to complete their eligibility 

determinations more efficiently,45 as 

well as systemic improvements that 

allowed for the aggregation of data 

needed to estimate the rate at which 

disputes were determined eligible for 

the Federal IDR process and the rate at 

which one or both parties paid the 

administrative fee for purposes of 

calculating the administrative fee. The 

December 2022 guidance did not amend 

the certified IDR entity fee ranges. 

C. Recent Litigation 

On November 30, 2022, the Texas 

Medical Association, Tyler Regional 

Hospital, and a Texas physician filed a 

lawsuit (TMA III) 46 against the 

Departments and OPM, asserting that 

the July 2021 interim final rules 47 and 

certain related guidance documents 

were in conflict with the statutory 

language, including the regulations 

governing how the qualifying payment 

amount (QPA) should be calculated. On 

August 24, 2023, the U.S. District Court 

for the Eastern District of Texas (Texas 

District Court) issued a memorandum 

opinion and order 48 that vacated certain 

portions of the July 2021 interim final 

rules and associated regulatory 

provisions 49 and portions of guidance 

documents,50 including those portions 

that provided the methodology for 

calculating the QPA and interpretations 

for certified IDR entities related to the 

processing of disputes for air ambulance 

services. 

On January 30, 2023, the Texas 

Medical Association, Houston 

Radiology Associated, Texas 

Radiological Society, Tyler Regional 

Hospital, and a Texas physician filed a 

lawsuit (TMA IV) 51 against the 

Departments and OPM, asserting that 

the December 2022 guidance was 

unlawfully issued without notice and 

comment rulemaking.52 On August 3, 

2023, the Texas District Court issued a 

memorandum opinion and order 53 that 

vacated the portion of the December 

2022 guidance 54 that increased the 

administrative fee for the Federal IDR 

process to $350 per party for disputes 

initiated during the calendar year 

beginning January 1, 2023. The Texas 

District Court also vacated certain 

provisions of the October 2021 interim 

final rules setting forth the batching 

criteria under which multiple IDR items 

or services are treated as related to the 

‘‘treatment of a similar condition.’’ 55

As a result of the TMA IV opinion and 

order, on August 3, 2023, the 

Departments instructed certified IDR 

entities to pause all work in the Federal 

IDR portal until the Departments 

updated the Federal IDR process 

guidance, systems, and related 

documents to make them consistent 

with the TMA IV opinion and order. 

Subsequently, on August 7, 2023, the 

Departments directed certified IDR 

entities to resume processing all single 

and bundled disputes for which the 

administrative fee had already been 

paid and all batched disputes for which 

the certified IDR entity had already 

determined the dispute to be eligible 

and administrative fees had been paid 

(or the deadline for collecting fees had 

expired) before August 3, 2023. On 

August 8, 2023, the Departments 

directed certified IDR entities to resume 

processing single and bundled disputes 

initiated in 2022 for which the 

administrative fee had not been paid 

before August 3, 2023. On August 11, 

2023, the Departments released 


lotter on DSK11XQN23PROD with PROPOSALS1
65892 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

56Centers for Medicare & Medicaid Services 

(August 11, 2023). Federal Independent Dispute 

Resolution (IDR) Process Administrative Fee FAQs. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/no-surprises-actindependent-dispute-resolution-administrative-feefrequently-asked-questions.pdf. 

57 26 U.S.C. 9816(c)(8)(A). 

58 29 U.S.C. 1185e(c)(8)(A). 

59 42 U.S.C. 300gg–111(c)(8)(A). 

60 26 CFR 54.9816–8T(d)(2)(i), 29 CFR 2590.716– 

8(d)(2)(i), and 45 CFR 149.510(d)(2)(i). 

61 26 U.S.C. 9816(c)(8)(B). 

62 29 U.S.C. 1185e(c)(8)(B). 

63 42 U.S.C. 300gg–111(c)(8)(B). 

64 26 CFR 54.9816–8T(d)(2)(ii), 29 CFR 2590.716– 

8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii). 

65 6:23–cv–00059–JDK (E.D. Tex. Jan. 30, 2023). 

66Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

67See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs, 

No. 6:23–cv–00059–JDK (E.D. Tex. August 3, 2023). 

https://ecf.txed.uscourts.gov/doc1/175113317945. 

guidance 56 to reflect the TMA IV 

decision related to the administrative 

fee and to clarify the applicability of the 

$50 per party per dispute administrative 

fee amount for 2023, as provided in the 

October 2022 guidance. On the same 

date, the Departments directed certified 

IDR entities to resume processing single 

and bundled disputes initiated in 2023 

for which the administrative fees had 

not been paid before August 3, 2023. As 

a result of the TMA III opinion and 

order issued on August 24, 2023, the 

Departments again paused all IDRrelated activities in order to evaluate the 

Texas District Court’s order and review 

current Federal IDR processes, 

templates, and system updates that are 

necessary to comply with the order. As 

of the publication of this proposed 

rulemaking, the Departments have 

directed certified IDR entities only to 

perform limited Federal IDR process 

functions. 

D. Scope and Purpose of Rulemaking 

These rules propose amendments to 

26 CFR 54.9816–8(d)(2)(ii) and 

(e)(2)(vii), 29 CFR 2590.716–8(d)(2)(ii) 

and (e)(2)(vii), and 45 CFR 

149.510(d)(2)(ii) and (e)(2)(vii) to 

provide that the administrative fee 

amount and the ranges for certified IDR 

entity fees for single and batched 

disputes would be set by the 

Departments through notice and 

comment rulemaking, rather than in 

guidance published annually. This 

rulemaking also proposes to set forth the 

methodology used to calculate the 

administrative fee and the 

considerations used to develop the 

certified IDR entity fee ranges. These 

rules would also propose the 

administrative fee amount and certified 

IDR entity fee ranges for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024. 

II. Overview of the Proposed Rules— 

Departments of the Treasury, Labor, 

and HHS 

A. Administrative Fee Amount and 

Methodology 

Under section 9816(c)(8)(A) of the 

Code,57 section 716(c)(8)(A) of ERISA,58

section 2799A–1(c)(8)(A) of the PHS 

Act,59 and the October 2021 interim 

final rules,60 each party to a 

determination for which a certified IDR 

entity is selected must pay an 

administrative fee for participating in 

the Federal IDR process. Under section 

9816(c)(8)(B) of the Code,61 section 

716(c)(8)(B) of ERISA,62 section 2799A– 

1(c)(8)(B) of the PHS Act,63 and the 

October 2021 interim final rules,64 the 

administrative fee is established in a 

manner such that the total 

administrative fees paid for a year are 

estimated to be equal to the amount of 

expenditures estimated to be made by 

the Departments to carry out the Federal 

IDR process for that year. 

In TMA IV,65 the Texas District Court 

issued an opinion and order holding 

that the process by which the 

Departments amended the 2023 

administrative fee guidance to increase 

the administrative fee for the Federal 

IDR process from $50 to $350 per party 

for disputes initiated during the 

calendar year beginning January 1, 

2023 66 was a violation of the 

Departments’ obligation under the 

Administrative Procedure Act to give 

affected parties notice of and an 

opportunity to comment on the 

administrative fee.67 In light of the 

Texas District Court’s opinion and 

order, as well as the Departments’ 

reassessment regarding the 

practicability of establishing the 

administrative fee through notice and 

comment rulemaking, the Departments 

propose to establish the amount of the 

administrative fee through notice and 

comment rulemaking. To reflect this, 

the Departments propose to amend 26 

CFR 54.9816–8(d)(2)(ii), 29 CFR 

2590.716–8(d)(2)(ii), and 45 CFR 

149.510(d)(2)(ii) to state that the 

Departments will set the administrative 

fee through notice and comment 

rulemaking. 

The Departments also propose at 26 

CFR 54.9816–8(d)(2)(ii), 29 CFR 

2590.716–8(d)(2)(ii), and 45 CFR 

149.510(d)(2)(ii) that, for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024, the proposed administrative fee 

amount would be $150 per party per 

dispute, which would remain in effect 

until changed by subsequent 

rulemaking. Under this proposed rule, 

the Departments propose to retain the 

flexibility to update the administrative 

fee more frequently or less frequently 

than annually. With this flexibility, the 

Departments intend to update the 

administrative fee amount when the 

total projected amount of administrative 

fees paid or projected expenditures 

made by the Departments to carry out 

the Federal IDR process changes, such 

that a new administrative fee amount 

would be required for the Departments 

to cover the costs of carrying out the 

Federal IDR process. For example, the 

Departments’ expenditures may be 

impacted by changes to regulations 

governing the Federal IDR process or the 

implementation of that process, the 

volume of disputes initiated and closed 

under the Federal IDR process, and the 

Departments’ costs. In such cases, the 

Departments would propose a different 

administrative fee amount in notice and 

comment rulemaking before applying a 

new administrative fee amount. Thus, 

the proposal to amend the current 

regulation to remove the requirement to 

set the administrative fee amount 

annually would help mitigate the risk of 

the Departments being unable to collect 

administrative fees sufficient to carry 

out the Federal IDR process in response 

to evolving conditions, such as the rates 

at which disputes are being initiated 

and closed. Additionally, the 

Departments could determine that the 

projected amount of administrative fees 

paid at the current fee amount will 

equal the projected expenditures made 

to carry out the Federal IDR process in 

a subsequent year, and therefore, no 

adjustment of the fee amount in 

rulemaking would be necessary. This 

proposed approach would comport with 

the statutory requirement to set the 

administrative fee amount in a manner 

such that the total amount of fees paid 

in a year is estimated to be equal to the 

amount of expenditures estimated to be 

made by the Departments in such year 

in carrying out the Federal IDR process. 

The Departments propose to set the 

administrative fee amount by projecting 

the amount of expenditures to be made 

by the Departments in carrying out the 

Federal IDR process and dividing this 

by the projected number of 

administrative fees to be paid by the 

parties. The Departments project the 

number of administrative fees to be paid 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65893 

68Under current policy and guidance, the 

administrative fee may be collected by certified IDR 

entities up until the time the parties submit their 

offers, and therefore the administrative fee is not 

collected for all disputes initiated. See, for example, 

Centers for Medicare & Medicaid Services (March 

2023). Federal Independent Dispute Resolution 

(IDR) Process Guidance for Certified IDR Entities. 

https://www.cms.gov/files/document/federal-idrguidance-idr-entities-march-2023.pdf. 

69For this calculation, we used our Federal IDR 

process collections data from February 2023 

through July 2023 to calculate the average monthly 

volume of disputes closed. We applied the 25 

percent reduction described in this rule to the 

average monthly volume and multiplied this 

number by 12 to project the annual volume of 

closed disputes. 

70Because the Departments generally are not 

permitted to publicly provide information that is 

confidential due to trade secrets associated with 

future contracting, the Departments are limited in 

their ability to provide detailed information about 

projected total Federal IDR process expenditures. 

See 45 CFR 5.31(d). 

71Centers for Medicare & Medicaid Services 

(November 21, 2022). Notice of the Federal 

Independent Dispute Resolution (IDR) Team 

Technical Assistance to Certified Independent 

Dispute Resolution Entities (IDREs) in the Dispute 

Eligibility Determination Process. https://

www.cms.gov/files/document/idre-eligibilitysupport-guidance-11212022-final-updated.pdf. 

72As described later in this rule, we estimate that 

the proposed administrative fee of $150 per party, 

per dispute would result in an estimated annual 

collection approximately equal to the projected 

annual expenditures of approximately $70 million. 

based on the total volume of disputes to 

be closed. Under the current Federal 

IDR process and the policies proposed 

in these proposed rules, both the 

initiating and non-initiating parties to a 

dispute are required to pay the nonrefundable administrative fee in full, 

and therefore the total amount of 

administrative fees paid is calculated to 

reflect that both parties to a dispute pay 

the administrative fee. In calculating the 

Departments’ estimated administrative 

fee, the Departments use the total 

volume of disputes projected to be 

closed, rather than the total volume of 

disputes projected to be initiated, 

because the total volume of closed 

disputes is more indicative of the total 

volume of disputes for which fees are 

paid under the Departments’ current 

collections process.68

For the purposes of calculating the 

administrative fee amount proposed in 

this rulemaking, the Departments 

project approximately 225,000 disputes 

will be closed annually. This projection 

is based on Federal IDR process data 

from February 2023 through July 2023, 

which is the most recent 6-month 

period before Federal IDR process 

operations were temporarily paused in 

August 2023.69 Using this projected 

volume of disputes, the Departments 

assume a prospective reduction of 

approximately 25 percent in the volume 

of closed disputes to account for the 

impact of the TMA IV opinion and 

order’s vacatur of the batching 

regulations at 26 CFR 54.9816– 

8T(c)(3)(i)(C), 29 CFR 2590.716– 

8(c)(3)(i)(C), and 45 CFR 

149.510(c)(3)(i)(C). The Departments 

anticipate that the vacatur of the 

batching regulations as a result of TMA 

IV discussed in sections I.C. and II.B. of 

this preamble may result in the 

initiation and closure of fewer disputes 

due to the possibility that batched 

disputes may involve more line items 

and take more time to close. 

Additionally, to calculate the 

administrative fee amount proposed in 

this rulemaking, the Departments 

projected the expenditures to carry out 

the Federal IDR process. These 

projected expenditures include the 

Federal resources needed to carry out 

the Federal IDR process, such as 

personnel costs, as well as activities 

included as part of contract costs, such 

as resources used for targeted 

improvements of the overall process. 

The costs to the Departments for 

carrying out the Federal IDR process in 

2024 are projected to be approximately 

$70 million,70 which includes contract 

costs and Federal resources associated 

with: 

• Maintaining the Federal IDR portal, 

which is intended to make the parties’ 

and certified IDR entities’ experiences 

using the portal more efficient, clear, 

and streamlined; 

• Certifying IDR entities and 

collecting data from them, which is 

intended to increase the number of 

certified IDR entities, improving the 

speed of eligibility and payment 

determinations, and to assist the 

Departments in understanding where 

some efficiencies may still be gained in 

the process; 

• Conducting program integrity 

activities, such as QPA audits and IDR 

decision audits, which are intended to 

ensure program integrity of the Federal 

IDR process by reducing and preventing 

errors in the Federal IDR process; 

• Investigating relevant complaints, 

which is intended to ensure compliance 

with the Federal IDR process; 

• Providing outreach to parties and 

technical assistance to certified IDR 

entities, which is intended to streamline 

the experience and further improve the 

speed and integrity of eligibility and 

payment determinations; 

• Collecting administrative fees, 

which is intended to operationalize, 

maintain, and oversee administrative fee 

collections from certified IDR entities; 

• Assisting with eligibility 

determinations when the volume of 

disputes submitted exceeds the capacity 

of certified IDR entities to perform those 

determinations, which is intended to 

expedite and facilitate eligibility 

reviews conducted by certified IDR 

entities; 71 and 

• Retaining and making available 

Federal personnel dedicated to carrying 

out Federal IDR process activities. 

Using this methodology, as proposed 

in paragraphs 26 CFR 54.9816– 

8(d)(2)(ii), 29 CFR 2590.716–8(d)(2)(ii), 

and 45 CFR 149.510(d)(2)(ii), the 

proposed administrative fee for disputes 

initiated on or after the later of the 

effective date of these rules or on 

January 1, 2024, and continuing until 

changed by subsequent rulemaking, 

would be calculated by dividing the 

projected annual expenditures of 

approximately $70 million to be made 

by the Departments in carrying out the 

Federal IDR process by the projected 

annual number of administrative fees to 

be paid by the disputing parties. As 

previously explained, the projected total 

number of administrative fees is 

calculated using the projected volume of 

disputes closed and reflects that both 

parties to a dispute pay the 

administrative fee. We project 225,000 

closed disputes in calendar year 2024. 

Therefore,450,000 administrative fees 

would be paid by the parties in the year, 

because initiating and non-initiating 

parties to a dispute are required to pay 

the full administrative fee under the 

current Federal IDR process. This would 

result in a proposed administrative fee 

amount of $150 per party per dispute.72

This administrative fee amount is based 

on the most current collections data 

(February through July 2023), which the 

Departments have determined to be the 

best available data for estimation of 

future collections, and the Departments’ 

projected expenditures as of the 

publication of these proposed rules. 

These projections may change between 

the publication of the proposed and 

final rules based on more recent data 

available at that time; thus, the 

Departments propose to finalize an 

administrative fee amount methodology 

proposed here, as finalized, using the 

updated data, if applicable. 

The Departments continue to consider 

improvements to the Federal IDR 

process, including how collection of the 

administrative fee could be more 

efficient and how the administrative fee 

amount could better ensure equitable 

access to the Federal IDR process across 

the various parties seeking to initiate 

disputes. Accordingly, the Departments 

intend to propose additional policies 

related to the administrative fee in 

future notice and comment rulemaking, 

including policies that would change 

the manner and timeframe in which the 


lotter on DSK11XQN23PROD with PROPOSALS1
65894 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

73Beginning January 1, 2023, certified IDR 

entities are permitted to charge a certified IDR 

entity fee for single determinations within the range 

of $200–$700. See Centers for Medicare & Medicaid 

Services (October 31, 2022). Calendar Year 2023 

Fee Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

74Beginning January 1, 2023, certified IDR 

entities are permitted to charge a certified IDR 

entity fee for batched determinations within a range 

of $268–$938. See Centers for Medicare & Medicaid 

Services (October 31, 2022). Calendar Year 2023 

Fee Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

75This was first proposed in the Calendar Year 

2023 Fee Guidance for the Federal Independent 

Dispute Resolution Process under the No Surprises 

Act and implemented for all disputes initiated as 

of January 1, 2023. See Centers for Medicare & 

Medicaid Services (October 31, 2022). Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act. https://www.cms.gov/cciio/ 

resources/regulations-and-guidance/downloads/ 

cy2023-fee-guidance-federal-independent-disputeresolution-process-nsa.pdf. 

administrative fee is paid, reduce the 

administrative fee amount for disputes 

that are determined ineligible or that 

involve low-dollar claims, and codify 

the consequences of failing to pay the 

administrative fee. Therefore, it is likely 

that these potential future proposals 

could require changes to the 

administrative fee amount, and any 

such change would be set forth in future 

notice and comment rulemaking. 

The Departments solicit comments on 

this proposal, including the 

methodology used to calculate the 

administrative fee amount and the 

proposed administrative fee amount for 

disputes initiated on or after the later of 

the effective date of these rules or on 

January 1, 2024, as well as any potential 

effects on interested parties as a result 

of increasing the administrative fee from 

$50 to $150 per party. For example, the 

Departments solicit comments on 

whether this proposed administrative 

fee amount could be cost prohibitive for 

certain parties disputing low-dollar 

items and services, and whether it 

would reduce the number of disputes 

initiated in calendar year 2024 and 

beyond. The Departments also solicit 

comment on the proposal to set the 

administrative fee amount more 

frequently or less frequently than 

annually and whether the Departments 

should instead retain the current policy 

that the administrative fee amount is set 

annually. Additionally, the Departments 

seek comment on any implications of 

TMA III and TMA IV that could impact 

these administrative fee proposals that 

are not already noted in this proposed 

rulemaking. 

Finally, the Departments solicit 

comment on whether, in future years, 

they should apply an inflationary 

adjustment, such as the consumer price 

index for all urban consumers (CPI–U), 

to the projected expenditures to be 

made by the Departments in carrying 

out the Federal IDR process when 

calculating the administrative fee 

amount each year and set forth the 

adjusted administrative fee amount in 

guidance, rather than in notice and 

comment rulemaking, as long as there 

are no other changes to the 

methodology. 

B. Certified IDR Entity Fee Ranges 

Under current regulations at 26 CFR 

54.9816–8T(e)(2)(vii), 29 CFR 2590.716– 

8(e)(2)(vii), and 45 CFR 

149.510(e)(2)(vii), the certified IDR 

entity fees for single determinations and 

batched determinations are set by the 

certified IDR entities within the upper 

and lower limits of ranges for each as set 

forth in guidance issued annually by the 

Departments. 

The Departments propose to amend 

the provisions of the regulations 

establishing the ranges for certified IDR 

entity fees for single and batched 

disputes to refer to the ranges being 

established in notice and comment 

rulemaking, rather than in guidance. 

These changes would be reflected at 26 

CFR 54.9816–8(e)(2)(vii), 29 CFR 

2590.716–8(e)(2)(vii), and 45 CFR 

149.510(e)(2)(vii), which would specify 

that certified IDR entities must, on an 

annual basis, provide a fixed fee for 

single determinations and separate fixed 

fees for batched determinations within 

the upper and lower limits for each as 

set in notice and comment rulemaking. 

Further, the proposed rules would 

provide that the certified IDR entity fee 

ranges established by the Departments 

in rulemaking would remain in effect 

until new certified IDR entity fee ranges 

are changed by a subsequent notice and 

comment rulemaking. Under this 

approach, the Departments would retain 

the discretion to update the certified 

IDR entity fee ranges more or less 

frequently than annually. Consistent 

with the current process, the certified 

IDR entity could not charge a fee outside 

the limits set forth in rulemaking unless 

the certified IDR entity or IDR entity 

seeking certification receives advance 

written approval from the Secretary to 

charge a fixed fee beyond the upper or 

lower limits. Finally, the Departments 

propose that the certified IDR entity or 

IDR entity seeking certification may 

seek advance written approval from the 

Departments to update its fees more 

frequently than once annually. 

The Departments propose that for 

disputes initiated on or after the later of 

the effective date of these rules or 

January 1, 2024, certified IDR entities 

would be permitted to charge a fixed 

certified IDR entity fee for single 

determinations within the range of $200 

to $840. This fee range represents a 20 

percent increase to the upper limit from 

the 2023 single determination fee 

range.73 The Departments anticipate 

that the proposed range for single 

determinations would only minimally 

impact the fixed fees selected by 

certified IDR entities. This is because 

the process of arbitrating single 

determinations should remain relatively 

predictable in 2024, as these disputes 

have not been impacted by the TMA IV 

decision. The Departments expect that 

certified IDR entities would continue to 

price their single determination fees 

competitively despite the proposed 

increase in range. Nonetheless, the 

Departments are of the view that an 

increase to the upper limit of the range 

is necessary to allow certified IDR 

entities flexibility to set their fees in 

alignment with their operating costs. 

The Departments propose that for 

disputes initiated on or after the later of 

the effective date of these proposed 

rules, or January 1, 2024, certified IDR 

entities would be permitted to charge a 

fixed certified IDR entity fee for batched 

determinations within the range of $268 

to $1,173, unless a fee not within that 

range is approved by the Departments 

pursuant to paragraphs 26 CFR 54.9816– 

8T(e)(2)(vii)(A) and (B), 29 CFR 

2590.716–8(e)(2)(vii)(A) and (B), and 45 

CFR 149.510(e)(2)(vii)(A) and (B). This 

fee range represents a 25 percent 

increase to the upper limit from the 

2023 batched determination fee range.74

The Departments propose to continue to 

use a tiered fee structure based on the 

number of line items within the batch.75

Under this proposed rule, the certified 

IDR entities would be permitted to 

charge a fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute 

beginning with the 26th line item. A 

certified IDR entity’s batched 

determination fee would be applied to 

all batched disputes that have between 

2 and 25 line items. For batched 

disputes with more than 25 line items, 

the certified IDR entity fee would be 

able to increase the base amount for 

every additional 25 line items by a fixed 

value between $75 and $250, as 

determined by the certified IDR entity. 

Unlike the fixed certified IDR entity fee 

for single and batched determinations, 

certified IDR entities would not be able 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65895 

76See Centers for Medicare & Medicaid Services 

(December 23, 2022). Amendment to the Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act: Change in Administrative Fee. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/amended-cy2023-feeguidance-federal-independent-dispute-resolutionprocess-nsa.pdf. 

77Between April 15, 2022 and March 31, 2023, 

disputing parties initiated 334,828 disputes through 

the Federal IDR portal. During that time, noninitiating parties challenged the eligibility of 

122,781 disputes. Even if the non-initiating party 

does not challenge eligibility of the dispute, the 

certified IDR entity must review the dispute and 

confirm that it is eligible before the dispute can 

proceed in the Federal IDR process. These reviews 

involve complex eligibility determinations that 

require certified IDR entities to expend considerable 

time and resources. Eligibility challenges are 

described in the following documents: Centers for 

Medicare & Medicaid Services (August 19, 2022). 

Federal Independent Dispute Resolution Process 

Status Update. https://www.cms.gov/files/ 

document/federal-idr-process-status-update-august2022.pdf and Centers for Medicare & Medicaid 

Services (April 27, 2023). Federal Independent 

Dispute Resolution—Status Update. https://

www.cms.gov/files/document/federal-idrprocessstatus-update-april-2023.pdf. 

78 Indeed, during the early implementation of the 

Federal IDR process, some certified IDR entities did 

temporarily halt their operations before the 

Departments provided additional batching guidance 

in August 2022, see: U.S. Department of Health and 

Human Services, U.S. Department of Labor, and 

U.S. Department of the Treasury (August 2022). 

Technical Assistance for Certified Independent 

Dispute Resolution Entities. https://www.hhs.gov/ 

guidance/sites/default/files/hhs-guidancedocuments/Technical-Assistance-IDR-EntitiesAugust-2022.pdf. 

79 26 U.S.C. 9816(c)(3)(A). 

80 26 U.S.C. 9816(c)(3)(A). 

to seek approval to charge a fee outside 

of the tiered fee range for batched 

determinations. It is the Departments’ 

view that the ability to seek approval to 

charge a fee outside of the fixed certified 

IDR entity batched fee range is 

sufficiently flexible to address any 

potential cost concerns. This is because 

the certified IDR entities only need the 

ability to set a fee outside one of the two 

batched ranges’ upper and lower limits 

to set their overall batched fee in a 

manner that allows them to cover their 

expenses. Further, for batched 

determinations, the fee range would not 

restrict the application of the additional 

fixed tiered fee for batched disputes. For 

example, if a certified IDR entity had, in 

2024, set its batched determination fee 

at $1,000 (which would be within the 

fee range of $268 to $1,173) and its 

tiered fee at $200 (which would be 

within the tiered fee range of $75 to 

$250) for each additional increment of 

25 line items, and were to be selected 

for a batched determination with 53 line 

items (which corresponds to 2 

increments of 25 line items within the 

tiered fee structure plus the batched 

determination fee) it would be 

permitted to charge $1,400 ($1,000 + 

($200 × 2)) as its batched determination 

fee in calendar year 2024. 

Further, the Departments propose that 

the batched determination fee would 

continue to be based on the number of 

line items included in the initiating 

party’s initial submission of the batched 

dispute to the Federal IDR process. This 

would account for the time and effort 

required of certified IDR entities in 

determining eligibility for all line items 

within a batched dispute such that they 

can ultimately make a payment 

determination. These fee ranges would 

apply until another set of fee ranges 

were proposed and finalized through 

subsequent notice and comment 

rulemaking. 

If a certified IDR entity wishes to 

charge a fee outside either of these 

proposed ranges, it would continue to 

follow the existing process for 

requesting written approval from the 

Departments to do so outlined in 26 

CFR 54.9816–8T(e)(2)(vii)(A) and (B), 29 

CFR 2590.716–8(e)(2)(vii)(A) and (B), 

and 45 CFR 149.510(e)(2)(vii)(A) and 

(B), which the Departments do not 

propose to change in this rulemaking. 

During calendar year 2023, certified 

IDR entities continue to incur high 

administrative costs due to the volume 

of disputes and the complexity in 

determining eligibility, as described in 

the December 2022 guidance.76 These 

proposed ranges reflect the significant 

administrative burden, ongoing 

eligibility determination challenges,77

and the Departments’ desire to allow 

more flexibility for certified IDR entities 

to determine a fee that best reflects their 

operating costs. Given the wide 

variability of certified IDR entities’ 

operations, structures, staffing patterns, 

and expenses, it is the Departments’ 

position that the ranges should not 

overly restrict the certified IDR entities’ 

ability to set their fees commensurate 

with their costs. Instead, broad ranges 

that allow certified IDR entities 

flexibility to set their fees in accordance 

with their own circumstances would 

allow them to remain financially viable 

and encourage their continued 

participation in the Federal IDR process. 

The Departments acknowledge that 

broadening the certified IDR entity fee 

ranges could have some impact on the 

cost to parties to engage in the Federal 

IDR process (discussed in section 

IV.D.2. of this preamble) which could 

implicate access to the Federal IDR 

process. However, access to the Federal 

IDR process is dependent on certified 

IDR entities’ voluntary participation in 

that process. Voluntary participation by 

certified IDR entities is only possible if 

they are able to set their fees within 

ranges necessary to cover their operating 

expenses. If the Departments were to set 

fee ranges that could not support the 

certified IDR entities’ financial viability 

and certified IDR entities declined to 

participate in the Federal IDR process 

altogether, the goal of access would be 

impaired.78 Therefore, the Departments 

have endeavored to judiciously balance 

access concerns with certified IDR 

entities’ interests and seek comment on 

the balance proposed. In setting the 

certified IDR entity ranges for disputes 

initiated on or after the later of the 

effective date of these rules or on 

January 1, 2024, the Departments 

considered: 

• The anticipated time and resources 

needed for certified IDR entities to make 

payment determinations meeting the 

requirements of the statute, rules, and 

guidance; 

• The anticipated time and resources 

needed for data reporting; 

• The anticipated time and resources 

needed for complying with audit 

requirements; 

• The anticipated volume of Federal 

IDR initiations and payment 

determination quality assessments; 

• The anticipated volume of Federal 

IDR initiations ineligible for the Federal 

IDR process; and 

• The level of complexity in 

determining the eligibility of items and 

services for the Federal IDR process. 

After reviewing these considerations, 

the Departments are of the opinion that 

a 20 percent increase in the upper limit 

of the certified IDR entity fee range for 

single determinations (from $200 to 

$840), would provide certified IDR 

entities an appropriate amount of 

flexibility in setting a fixed fee for single 

determinations, taking into account the 

anticipated increase in operational cost. 

The Departments relied on these same 

considerations to develop the proposed 

25 percent increase in the upper limit of 

the certified IDR entity fee range for 

batched determinations, but also took 

into account the TMA IV opinion and 

order when proposing the range for 

batched determinations and the 

associated tiered fee based on the 

number of line items. In particular, the 

Departments have considered the 

impact of the TMA IV opinion and order 

on the anticipated complexity of 

batched determinations to inform the 

proposed increased base range of $268 

to $1,173 and proposed tiered fee range 

of $75 to $250 based on the number of 

line items in a batched dispute. Section 

9816(c)(3)(A) of the Code,79 section 

716(c)(3)(A) of the ERISA,80 and section 


lotter on DSK11XQN23PROD with PROPOSALS1
65896 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

81 42 U.S.C. 300gg–111(c)(3)(A). 

82See Memorandum Opinion and Order, Tex. 

Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs, 

No. 6:23–cv–00059–JDK (E.D. Tex. August 3, 2023). 

https://ecf.txed.uscourts.gov/doc1/175113317945. 

83See U.S. Department of Health and Human 

Services, U.S. Department of Labor, and U.S. 

Department of the Treasury (August 2022). 

Technical Assistance for Certified Independent 

Dispute Resolution Entities. https://www.hhs.gov/ 

guidance/sites/default/files/hhs-guidancedocuments/Technical-Assistance-IDR-EntitiesAugust-2022.pdf. 

84 Id. 85 45 CFR 149.510(e)(2)(vii). 

2799A–1(c)(3)(A) of the PHS Act 81

direct the Departments to specify 

criteria under which multiple qualified 

IDR items and services are permitted to 

be considered jointly as part of a single 

determination by a certified IDR entity 

for purposes of encouraging the 

efficiency (including minimizing costs) 

of the Federal IDR process. These 

sections further require that items and 

services may be considered as part of a 

batched determination only if the items 

and services are furnished by the same 

provider or facility; payment for the 

items and services are made by the same 

group health plan or health insurance 

issuer; such items and services are 

related to the treatment of a similar 

condition; and the items and services 

were furnished during the 30-day period 

following the date on which the first 

item or service included in the batched 

determination was furnished, or during 

an alternative period as determined by 

the Departments, for use in limited 

situations, such as by the consent of the 

parties or in the case of low-volume 

items and services, to encourage 

procedural efficiency and minimize 

health plan and provider administrative 

costs. 

Since the TMA IV opinion and order 

vacated 26 CFR 54.9816–8T(c)(3)(i)(C), 

29 CFR 2590.716–8(c)(3)(i)(C), and 45 

CFR 149.510(c)(3)(i)(C), which 

established standards for determining 

when multiple items or services relate 

to ‘‘the treatment of a similar condition’’ 

for the purpose of batched disputes,82

the certified IDR entities may no longer 

rely on the regulatory guidance 

provided to assist certified IDR entities 

when reviewing batched disputes. 

Certified IDR entities must now only 

rely upon statutory language when 

determining whether multiple items or 

services are related to the treatment of 

a similar condition and are therefore 

appropriate to batch. 

As explained in the preamble to the 

October 2021 interim final rules, the 

Departments originally adopted the 

batching standards in those rules to 

avoid combinations of unrelated claims 

of providers, facilities, providers of air 

ambulance services and plans and 

issuers in a single dispute that could 

unnecessarily complicate an IDR 

payment determination and create 

inefficiencies in the Federal IDR 

process. The Departments further 

intended to reduce redundant IDR 

proceedings and streamline the certified 

IDR entities’ decision-making processes. 

The Departments anticipate that the 

change in batching parameters 

introduced by the vacatur of 26 CFR 

54.9816–8T(c)(3)(i)(C), 29 CFR 

2590.716–8(c)(3)(i)(C), and 45 CFR 

149.510(c)(3)(i)(C) will make certified 

IDR entities’ responsibilities and 

processes for eligibility and payment 

determinations under the Federal IDR 

process more complex and less certain. 

This unpredictability increases the 

systemic burden for certified IDR 

entities in the administration of their 

duties. In addition, the vacatur of 26 

CFR 54.9816–8T(c)(3)(i)(C), 29 CFR 

2590.716–8(c)(3)(i)(C), and 45 CFR 

149.510(c)(3)(i)(C) will also likely 

increase the number of items or services 

batched. Certified IDR entities have 

indicated to the Departments that 

making determinations on large batches 

of dissimilar items and services is 

particularly complex and burdensome. 

Based on certified IDR entities’ 

experiences during the early stages of 

implementing the Federal IDR process, 

prior to the Departments having 

provided guidance regarding the 

batching parameters in August 2022,83

the Departments observed that 

confusion related to the batching 

standards for the same or similar items 

or services contributed to increased 

complexity in determining eligibility, 

which added time and cost for certified 

IDR entities and contributed to 

processing delays.84 The Departments 

anticipate that the changes to batching 

standards will require certified IDR 

entities to update their operations, 

processes, and systems, demand greater 

staff resources, and increase the time 

needed to render eligibility 

determinations, including 

determinations of whether items or 

services may be submitted as a batch. 

Therefore, the proposal to increase the 

fee range for batched determinations 

and apply a tiered fee for batched 

disputes based on the number of line 

items would allow certified IDR entities 

to be appropriately compensated and 

ensure that Federal IDR process costs 

are clear to parties in advance of 

initiating the Federal IDR process. 

In finalizing the fee amounts, the 

Departments intend to take into account 

any updated data or assumptions as 

applied to the factors considered in this 

preamble to set the fee ranges. 

The Departments do not propose to 

change the process for certified IDR 

entities to set their fees.85 Certified IDR 

entities will continue to be permitted to 

set their fees within the ranges proposed 

in these proposed rules, if finalized. 

Under these proposed rules, a certified 

IDR entity must receive the 

Departments’ advance written approval 

to modify its fixed fees more than once 

annually. If requesting to set its fee more 

than once annually, the certified IDR 

entity must submit to the Departments 

for approval: (1) the fixed fee that the 

certified IDR entity is seeking to charge; 

(2) a description that reasonably 

explains the circumstances that require 

a change to its fee; and (3) a detailed 

description that reasonably explains 

how the change to its fee will be used 

to mitigate the effects of these 

circumstances. The Departments would 

use their discretion to determine if the 

explanations included in the request 

demonstrate that the change would 

ensure the certified IDR entity’s 

financial viability and would not 

impose on parties an undue barrier to 

accessing the Federal IDR process. It is 

appropriate to permit certified IDR 

entities to change their fees more than 

once annually, with advance approval 

from the Departments, as some certified 

IDR entities may adopt more efficiencies 

throughout the year that would allow 

them to charge a lower fee, or if 

conditions of the Federal IDR process 

fluctuate throughout the year, some 

certified IDR entities may need to 

increase their fees to cover operating 

expenses. 

The Departments seek comment on 

these proposals, including the proposed 

fee ranges themselves. The Departments 

solicit comment on whether in future 

years they should apply an inflationary 

adjustment consideration, such as the 

CPI–U, to the considerations used to 

develop the certified IDR entity fee 

ranges each year and set forth the 

adjusted fee amount in guidance, rather 

than notice and comment rulemaking. 

The Departments also seek comment on 

whether certified IDR entities should be 

allowed to set their fees based on a 

structure other than a fixed fee range for 

single disputes and tiered fees for 

batched disputes within the ranges 

proposed in these rules. Specifically, 

the Departments seek comment on 

whether certified IDR entities should 

have flexibility to set a per line item fee 

or a per unique service code fee. The 

Departments have considered that 

allowing a per line item fee or a per 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65897 

unique service code fee could better 

address the concern of unpredictable 

batching practices imposing high 

burdens on certified IDR entities. 

However, the Departments acknowledge 

that these pricing structures for batching 

could decrease the accessibility of the 

Federal IDR process for parties, 

particularly small providers. In 

addition, the Departments seek 

comment on the proposed number of 

line items in each additional batched 

tier. The Departments seek comment on 

whether the tiers should be set at 10 line 

items, 50 line items, or a different 

number than the proposed tiered 

increments of 25 line items. The 

Departments acknowledge the need to 

strike the correct balance between the 

line item increment and the amount of 

resources expended by the certified IDR 

entities to review those line items. The 

Departments have considered if 

increments of 25 line items or higher 

might impose too great a burden on the 

certified IDR entities so as not to be 

commensurate with the proposed tiered 

fee range available to them. However, 

the Departments also acknowledge that 

setting the line item increments lower 

than 25 line items would further impact 

the cost to parties of submitting a 

dispute, and that the proposed tiered fee 

range of $75 to $250 may not be 

appropriate at smaller line item 

increments. The Departments seek 

comment on whether the tiered fee for 

batched disputes should be set at a 

percentage of the certified IDR entity’s 

batched determination fee, similar to 

how the tiering for the 2023 calendar 

year were implemented, rather than a 

dollar value range. The Departments 

also seek comment on whether to 

provide a fixed fee that all certified IDR 

entities must charge beyond the 

proposed 25 line items per additional 25 

line items rather than permitting a range 

for certified IDR entities to choose from. 

More specifically, the Departments seek 

comment on whether certified IDR 

entities should be permitted to set their 

batched determination fee between $268 

and $1,173 and then be permitted to 

charge only an additional fixed dollar 

amount (for example, $125, $150, $200, 

etc.) per additional 25 line items. The 

Departments seek comment on the 

appropriateness of setting a fixed dollar 

tiered fee structure for batched disputes, 

since this could impact the certified IDR 

entities’ operational flexibility, and 

would limit their ability to 

competitively price their fees. However, 

the Departments are considering 

whether establishing a fixed dollar 

tiered fee might mitigate the risk of one 

or a few certified IDR entities pricing 

their tiered fee for batched disputes so 

low that they become inundated with 

large batches and thus provide greater 

consistency across certified IDR entities. 

The Departments are considering if this 

alternate approach would provide more 

consistency regarding the fees charged 

by different certified IDR entities and 

avoid potentially overburdening IDR 

entities that select a low tiered fee for 

batched disputes. 

III. Severability 

In the event that any portion of these 

proposed rules, if finalized as proposed, 

is declared invalid, the Departments 

intend that the various aspects of the 

administrative fee proposals and 

certified IDR entity fee proposals, as 

finalized, be severable. For example, if 

a court were to find unlawful all of the 

administrative fee proposals, the 

Departments would still intend for the 

certified IDR entity fee proposals to 

stand, and vice versa. As another 

example, if a court were to find 

unlawful the proposals to establish both 

the administrative fee and the certified 

IDR entity fee ranges more or less 

frequently than annually, the 

Departments would still intend for the 

administrative fee amount and certified 

IDR entity fee ranges to be (1) 

established through notice and 

comment rulemaking and (2) 

established in the amount and ranges as 

proposed in these proposed rules. 

Likewise, if a court were to find 

unlawful the proposed administrative 

fee amount or methodology or the 

certified IDR entity fee ranges or 

considerations used to determine the fee 

ranges as proposed in these proposed 

rules, the Departments would still 

intend for the administrative fee amount 

and certified IDR entity ranges to be (1) 

established through notice and 

comment rulemaking and (2) 

established more or less frequently than 

annually. 

Thus, the Departments propose at 

new paragraph 26 CFR 54.9816– 

8(d)(3)(i), 29 CFR 2590.716–8(d)(3)(i), 

and 45 CFR 149.510(d)(3)(i) that any 

provision of paragraph (d) or paragraphs 

(e)(2)(vii) through (e)(2)(ix) held to be 

invalid or unenforceable as applied to 

any person or circumstance shall be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, including as applied 

to persons not similarly situated or to 

dissimilar circumstances, unless such 

holding is that the provision of these 

paragraphs is invalid and unenforceable 

in all circumstances, in which event the 

provision shall be severable from the 

remainder of these paragraphs and shall 

not affect the remainder thereof. The 

Departments further propose at new 

paragraph 26 CFR 54.9816–8(d)(3)(ii), 

29 CFR 2590.716–8(d)(3)(ii), and 45 CFR 

149.510(d)(3)(ii) that the provisions in 

paragraphs (d) and (e)(2)(vii) through 

(ix) are intended to be severable from 

each other. 

The Departments are of the view that 

each of the proposals for the 

administrative fee amount and the 

certified IDR entity fee ranges would 

still function sensibly even if one or 

more of the proposals in these proposed 

rules, as finalized, were found unlawful. 

For example, the proposals to establish 

the administrative fee amount and 

certified IDR entity fee ranges in notice 

and comment rulemaking would not 

depend on either the lawfulness of the 

methodology used to determine the 

administrative fee amount or the 

lawfulness of the considerations used in 

determining the certified IDR entity fee 

ranges, or whether both would be 

established on an annual basis or more 

or less frequently than annually. The 

proposal to use notice and comment 

rulemaking to establish the fees 

specifies only the method the 

Departments would use and does not 

determine how frequently the fees 

would be established or the 

methodology for the administrative fee 

amount or the considerations used to 

determine the certified IDR entity fee 

ranges. 

The Departments seek comment on 

this approach. 

IV. Economic Impact and Paperwork 

Burden 

A. Summary—Departments of Health 

and Human Services and Labor 

These proposed rules would establish 

the administrative fee amount and the 

certified IDR entity fee ranges in notice 

and comment rulemaking, as well as 

propose the methodology for setting 

both fees. 

The Departments have examined the 

effects of these proposed rules as 

required by Executive Order 13563 (76 

FR 3821, January 21, 2011, Improving 

Regulation and Regulatory Review); 

Executive Order 12866 (58 FR 51735, 

October 4, 1993, Regulatory Planning 

and Review); Executive Order 14094 

entitled ‘‘Modernizing Regulatory 

Review’’ (April 6, 2023); the Regulatory 

Flexibility Act (Pub. L. 96–354, enacted 

September 19, 1980, Pub. L. 96–354); 

section 1102(b) of the Social Security 

Act (42 U.S.C. 1102(b)); section 202 of 

the Unfunded Mandates Reform Act of 

1995 (March 22, 1995, Pub. L. 104–4); 

and Executive Order 13132 (64 FR 

43255, August 10, 1999, Federalism). 


lotter on DSK11XQN23PROD with PROPOSALS1
65898 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

B. Executive Orders 12866, 13563, and 

14094—Departments of Health and 

Human Services and Labor 

Executive Orders 12866, 13563, and 

14094 direct Federal agencies to assess 

all costs and benefits of available 

regulatory alternatives and if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 14094 entitled 

‘‘Modernizing Regulatory Review’’ 

(hereinafter, the Modernizing E.O.) 

amends section 3(f)(1) of Executive 

Order 12866 (Regulatory Planning and 

Review). The amended section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule: 

(1) having an annual effect on the 

economy of $200 million or more in any 

1 year (adjusted every 3 years by the 

Administrator of OMB’s Office of 

Information and Regulatory Affairs 

(OIRA) for changes in gross domestic 

product), or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or tribal 

governments or communities; (2) 

creating a serious inconsistency or 

otherwise interfering with an action 

taken or planned by another agency; (3) 

materially altering the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or (4) 

raising legal or policy issues for which 

centralized review would meaningfully 

further the President’s priorities or the 

principles set forth in this Executive 

Order, as specifically authorized in a 

timely manner by the Administrator of 

OIRA in each case. 

A regulatory impact analysis (RIA) 

must be prepared for rules deemed 

significant under section 3(f)(1) ($200 

million or more in any 1 year). Although 

based on the Departments’ estimates, 

OMB’s OIRA has determined these rules 

are not significant under section 3(f)(1), 

the Departments have prepared an RIA 

that to the best of their ability presents 

the costs and benefits of these rules. 

OMB has reviewed these proposed 

regulations, and the Departments have 

provided the following assessment of 

their impact. 

C. Need for Regulatory Action— 

Departments of Health and Human 

Services and Labor 

The Departments propose to amend 

the certified IDR entity and 

administrative fee provisions of the 

rules for the Federal IDR process to set 

the administrative fee and the certified 

IDR entity fee ranges in notice and 

comment rulemaking, as well as 

propose the methodology for setting the 

administrative fee and the 

considerations for developing the 

certified IDR entity fee ranges. The 

Departments are of the view that these 

proposals would ensure that disputing 

and other parties are sufficiently 

notified and provided an opportunity to 

comment on the fees associated with the 

Federal IDR process. 

D. Summary of Impacts and Accounting 

Table—Departments of Health and 

Human Services and Labor 

The expected benefits and costs of 

these proposed rules are summarized in 

Table 1 and discussed in this section of 

the preamble. In accordance with OMB 

Circular A–4, Table 1 depicts an 

accounting statement summarizing the 

Departments’ assessment of the benefits, 

costs, and transfers associated with this 

regulatory action. The Departments are 

unable to quantify all benefits and costs 

of these proposed rules but have sought, 

where possible, to describe these nonquantified impacts. The effects in Table 

1 reflect non-quantified impacts and 

estimated direct monetary costs 

resulting from the provisions of these 

proposed rules. 

TABLE 1—ACCOUNTING TABLE

Accounting statement 

Benefits: 

Non-Quantified: 

• Increased interested party transparency as a result of the proposals to establish the administrative fee and certified IDR entity fee ranges 

in notice and comment rulemaking, as well as the methodology for calculating the administrative fee amount and the considerations for 

developing the certified IDR entity fee ranges. 

Costs: Estimate 

(million) 

Year dollar Discount rate 

(percent) 

Period 

covered 

Annualized ................................................................................................................. $0.09 2023 7 2023–2027 

Monetized ($/Year) .................................................................................................... $0.08 2023 3 2023–2027 

Quantified: 

• Costs to interested parties of $438,543 to review and interpret these rules in 2023. 

Transfers: Estimate 

(million) 

Year dollar Discount rate 

(percent) 

Period 

Covered 

Annualized ................................................................................................................. $41.69 2023 7 2023–2027 

Monetized ($/year) ..................................................................................................... $42.55 2023 3 2023–2027 

Quantified: 

• Transfers from disputing parties to the Federal government of approximately $45 million annually beginning in 2024 as a result of the 

proposal to set the administrative fee amount at $150 per party per dispute initiated on or after the later of the effective date of these 

rules or January 1, 2024. 

• Transfers from disputing parties to certified IDR entities of approximately $9 million annually beginning in 2024 as a result of the proposal 

to set the certified IDR entity fee ranges at $200-$840 for single determinations, $268-$1,173 for batched determinations, and an additional $75-$250 for each 25 line items in excess of the first 25 line items. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65899 

86As a result of the opinion and order in TMA 

IV, which vacated the portion of the December 2022 

guidance that increased the administrative fee to 

$350 per party per dispute for disputes initiated 

during calendar year 2023, the administrative fee 

amount reverted to the administrative fee amount 

established in the October 2022 guidance. See 

Centers for Medicare & Medicaid Services (August 

11, 2023). Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee FAQs. https://

www.cms.gov/cciio/resources/regulations-andguidance/downloads/no-surprises-act-independentdispute-resolution-administrative-fee-frequentlyasked-questions.pdf. Also see Centers for Medicare 

& Medicaid Services (October 31, 2022). Calendar 

Year 2023 Fee Guidance for the Federal 

Independent Dispute Resolution Process under the 

No Surprises Act. https://www.cms.gov/cciio/ 

resources/regulations-and-guidance/downloads/ 

cy2023-fee-guidance-federal-independent-disputeresolution-process-nsa.pdf. 

87The numbers in this analysis assume that all 

parties pay the requisite administrative fee in all 

closed disputes. 

88The Departments estimate that currently 

approximately 80 percent of disputes are single 

disputes and 20 percent of disputes are batched 

disputes. 

1. Benefits 

The primary benefit of this 

rulemaking would be to allow the 

Federal IDR process to function through 

establishing the administrative fee 

amount and certified IDR entity fee 

ranges in rulemaking and establishing 

the amounts of these fees for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024. In response to the opinion and 

order in TMA IV, these proposed rules 

are necessary in order to set the 

administrative fee amount. The primary 

non-quantifiable benefit of these 

proposed rules would be the 

continuation of a functioning Federal 

IDR process, which helps to protect 

consumers from surprise medical bills 

and helps providers to receive 

compensation. Additional benefits 

specific to each Federal IDR process fee 

type appear in the following sections. 

a. Administrative Fee Amount and 

Methodology 

The Departments are proposing to 

establish the amount of the 

administrative fee in notice and 

comment rulemaking for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024, as well as the methodology for 

determining the administrative fee. 

Utilizing notice and comment 

rulemaking would increase 

transparency of the administrative fee 

setting process and allow interested 

parties to provide feedback to the 

Departments prior to the Departments 

setting the administrative fee amount. 

The Departments seek comment on 

these assumptions. 

b. Certified IDR Entity Fee Ranges 

The Departments are proposing to 

establish the certified IDR entity fee 

ranges for single and batched 

determinations, which include a tiered 

fee range for batched determinations for 

disputes that exceed 25 dispute line 

items, in notice and comment 

rulemaking for disputes initiated on or 

after the later of the effective date of 

these rules or January 1, 2024. Utilizing 

notice and comment rulemaking to set 

the appropriate ranges for certified IDR 

entity fees would increase transparency 

for parties interested in the certified IDR 

entity fee ranges and allow interested 

parties to identify in advance the 

impacts of changing the certified IDR 

entity fee ranges. The Departments seek 

comment on these assumptions. 

2. Costs 

a. Administrative Fee Amount and 

Methodology 

The Departments are proposing to 

establish the amount of the 

administrative fee in notice and 

comment rulemaking for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024, as well as proposing the 

methodology for setting the 

administrative fee amount, in response 

to the opinion and order in TMA IV and 

to ensure that disputing and other 

parties are sufficiently notified and 

provided an opportunity to comment on 

the certified IDR entity fee ranges. The 

Departments are also proposing the 

administrative fee amount for disputes 

initiated on or after the later of the 

effective date of these rules or January 

1, 2024, at $150 per party per dispute. 

The current administrative fee is $50 

per party per dispute.86 Based on 

Federal IDR process data from February 

through July 2023, as discussed in 

section II.A. of this preamble, the 

Departments estimate that 

approximately 225,000 disputes are 

closed per year. Therefore, if the current 

administrative fee were to remain 

applicable, disputing parties would pay 

approximately $22.5 million in 

administrative fees annually (225,000 

disputes × 2 parties per dispute × $50 

per party).87 As the Departments are 

now proposing an administrative fee of 

$150 for disputes initiated on or after 

the later of the effective date of these 

rules or January 1, 2024, the 

Departments estimate that disputing 

parties would pay approximately $67.5 

million in administrative fees annually 

beginning in 2024 (225,000 disputes × 2 

parties per dispute × $150 per party), 

assuming the number of disputes 

remains stable year over year and the 

administrative fee amount is not 

subsequently changed through notice 

and comment rulemaking. Therefore, 

the costs associated with this proposal 

would be approximately $45 million 

($67.5 million if this proposal is 

finalized ¥$22.5 million if the status 

quo were to continue). 

The Departments seek comment on 

these estimates and assumptions. 

b. Certified IDR Entity Fee Ranges 

The Departments are proposing to set 

the certified IDR entity fee ranges for 

single and batched determinations, with 

a tiered fee range for batched 

determination for disputes that exceed 

25 line items, in notice and comment 

rulemaking for disputes initiated on or 

after January 1, 2024 in response to the 

opinion and order in TMA IV and to 

ensure that disputing and other parties 

are sufficiently notified and provided an 

opportunity to comment on the certified 

IDR entity fee ranges. The proposed 

certified IDR entity fee range for single 

determinations for disputes initiated on 

or after the later of effective date of 

these rules or January 1, 2024, would be 

$200 to $840. The proposed certified 

IDR entity fee range for batched 

determinations for disputes initiated on 

or after the later of the effective date of 

these rules or January 1, 2024 would be 

$268 to $1,173. Further, the proposed 

tiered fee range for batched 

determination for disputes initiated on 

or after the later of the effective date of 

these rules or January 1, 2024 would be 

$75 to $250. While the certified IDR 

entities are responsible for setting their 

fees for single and batched 

determinations, the Departments 

acknowledge that the proposed changes 

to the fee ranges may impact the cost to 

participate in the Federal IDR process 

for the parties. The Departments 

anticipate that the vacatur of batching 

standards by the Texas District Court’s 

opinion and order in TMA IV could 

result in initiating parties submitting 

single and batched disputes in 

proportions similar to those prior to the 

issuance of the August 2022 guidance, 

which interpreted the standards for 

batching qualified IDR items or services. 

Based on internal data prior to the 

establishment of the now vacated 

batching criteria that was released in 

August 2022, approximately 70 percent 

of disputes were single disputes and 

approximately 30 percent were batched 

disputes.88 The Departments anticipate 

that, as a result of TMA IV, initiating 


lotter on DSK11XQN23PROD with PROPOSALS1
65900 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

89The Departments use the number of closed 

disputes for this analysis, as the certified IDR entity 

fee is due from the parties at the time the parties 

submit their offers, in accordance with 26 CFR 

54.9816–8T(d)(1)(ii), 29 CFR 2590.716–8(d)(1)(ii), 

and 45 CFR 149.510(d)(1)(ii). Therefore, using the 

number of initiated disputes for this analysis would 

be inappropriate as not all initiated disputes 

proceed to the offer submission stage if, for 

example, they are determined to be ineligible for 

the Federal IDR process. 

90Currently, the median of the calendar year 2023 

certified IDR entity fees is $549 for single 

determinations and $770 for batched 

determinations, which are approximately the upper 

quartiles of the 2023 certified IDR entity fee ranges 

for single determinations ($200-$700) and batched 

determinations ($268–$938). The Departments 

anticipate that, due to the uncertainty around 

batching practices as a result of the TMA IV opinion 

and order, the certified IDR entities will likely 

choose to increase their batched determination fee. 

Therefore, using the 75th percentile of the proposed 

fee range to calculate the cost of batched 

determinations provides a reasonable 

approximation of the expected increase. 

91The Departments estimate that approximately 

11 percent of batched disputes submitted prior to 

the establishment of the batching criteria released 

in August 2022 exceeded 25 dispute line items. 

92The Departments estimate that 80 percent of 

disputes are single disputes and 20 percent are 

batched disputes (135,000 × 0.80 and 135,000 × 

0.20, respectively). For the purpose of this analysis, 

the Departments estimate that a subset of 

approximately 8 percent, or 2,160 batched 

determinations would be subject to a batching 

percentage (27,000 × 0.08). 

93Without the need to seek further approval, to 

account for the differential in the workload of 

batched determinations, a certified IDR entity may 

charge the following percentage of its approved 

certified IDR entity batched determination fee 

(‘‘batching percentage’’) for batched determinations, 

which are based on the number of line items 

initially submitted in the batch: 

• 2–20 line items: 100 percent of the approved 

batched determination fee; 

• 21–50 line items: 110 percent of the approved 

batched determination fee; 

• 51–80 line items: 120 percent of the approved 

batched determination fee; and 

• 81 line items or more: 130 percent of the 

approved batched determination fee. 

See Centers for Medicare & Medicaid Services 

(October 31, 2022). Calendar Year 2023 Fee 

Guidance for the Federal Independent Dispute 

Resolution Process under the No Surprises Act. 

https://www.cms.gov/cciio/resources/regulationsand-guidance/downloads/cy2023-fee-guidancefederal-independent-dispute-resolution-processnsa.pdf. 

parties will likely resume the batching 

practices they engaged in prior to 

issuance of the August 2022 guidance, 

such as initiating a higher proportion of 

batched disputes and including more 

items or services within those batched 

disputes. 

As discussed in section II.A. of this 

preamble, the Departments estimate that 

approximately 225,000 disputes are 

closed annually. Further, the 

Departments assume that certified IDR 

entities collect a certified IDR entity fee 

on approximately 135,000 of those 

225,000 closed disputes annually.89

Therefore, for the purposes of this 

analysis, the Departments estimate that 

certified IDR entities would collect 

certified IDR entity fees on 

approximately 94,500 single disputes 

and 40,500 batched disputes closed 

annually (135,000 × 0.70 and 135,000 × 

0.30, respectively). The Departments 

acknowledge that each party must pay 

a certified IDR entity fee to the certified 

IDR entity no later than the time that 

party submits its offer. However, 

because the non-prevailing party is 

ultimately responsible for the full 

certified IDR entity fee, which is 

retained by the certified IDR entity for 

the IDR services it performed, it is the 

Departments’ position that providing a 

per-dispute calculation reasonably 

captures the overall cost of the dispute 

without implicating false precision on 

the amount of certified IDR fee costs 

that initiating and non-initiating parties 

ultimately may incur. 

To develop a reasonable estimate for 

the certified IDR entity fee amount for 

both single and batched disputes, the 

Departments assume that the certified 

IDR entities would set single 

determination fixed fees approximate to 

the median value of the proposed fee 

range and would set batched 

determination fixed fees approximate to 

the 75th quartile of the proposed fee 

range.90 Therefore, for the purposes of 

this analysis, the Departments estimate 

that the average single determination 

fixed fee (range $200–$840) would be 

approximately $520, and that the 

average batched determination fixed fee 

(range $268–$1,173) would be 

approximately $947. At an estimated 

cost of $520 per single determination for 

approximately 94,500 single 

determinations annually, the 

Departments estimate that single 

determinations would cost disputing 

parties approximately $49,140,000 

annually ($520 × 94,500). At an 

estimated cost of $947 per batched 

determination for approximately 40,500 

batched determinations annually, the 

Departments estimate that batched 

determinations would cost disputing 

parties approximately $38,353,500 

annually ($947 × 40,500). 

Further, the Departments estimate 

that using the proposed tiered fee range 

for batched determinations, certified 

IDR entities would set and apply a fixed 

fee approximate to the median of the 

proposed range ($75–$250) for batched 

determinations based on the number of 

dispute line items. The Departments 

estimate that certified IDR entities 

would set their tiered fee at $163 on 

average. The Departments acknowledge 

the uncertainty surrounding the number 

of line items that may be submitted in 

batched disputes due to the TMA IV 

opinion. However, to produce an 

estimate, and for the purposes of this 

analysis, the Departments estimate that 

a subset of approximately 4,455 batched 

determinations would potentially be 

subject to at least 2 applications of the 

tiered fee ($163 × 2 = $326).91 As such, 

the Departments estimate that this 

subset of approximately 4,455 batched 

determinations exceeding 25 line items 

would cost disputing parties 

approximately $1,452,330 annually 

($326 × 4,455). In total, assuming the 

number of disputes remains stable year 

over year, the Departments estimate the 

parties would pay approximately $89 

million in certified IDR entity fees 

annually if these proposals are finalized 

as proposed ($49,140,000 for single 

determinations + $38,353,500 for 

batched determinations + $1,452,330 for 

the subset of batched determinations 

subject to the tiered fee). 

The calendar year 2023 certified IDR 

entity fee ranges for single 

determinations and batched 

determinations are $200–$700 and 

$268–$938, respectively. Certified IDR 

entities currently charge a median fixed 

fee of $549 for single determinations 

and $770 for batched determinations in 

2023. As such, for approximately 

108,000 single determinations and 

24,840 batched determinations 

annually,92 if current certified IDR 

entity fixed fees remained applicable, 

the Departments estimate that disputing 

parties would pay approximately 

$59,292,000 for single determinations 

($549 × 108,000) and $19,126,800 for 

batched determinations ($770 × 24,840). 

Current guidance permits certified IDR 

entities to charge a batching percentage 

on batched determinations based on the 

number of dispute line items.93 For the 

purposes of this analysis, the 

Departments assume that a subset of 

approximately 8 percent of batched 

determinations potentially subject to the 

batched percentages would at least 

receive a 120 percent increase from the 

median batched determination fixed fee 

($770 × 1.20). As such, the Departments 

estimate that disputing parties would 

pay approximately $2 million for this 

subset of batched determinations 

potentially subject to a batching 

percentage (2,160 × $924), resulting in a 

total cost of approximately $80 million 

under the current calendar year 2023 

certified IDR entity fee structure 

($59,292,000 for single determinations + 

$19,126,800 for batched determinations 

+ $2 million for the subset of batched 

determinations subject to the tiered fee). 

Therefore, taking into account the 

current costs to the parties associated 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65901 

94 In the regulatory impact analysis of the October 

2021 interim final rules, the Departments estimated 

that 17,333 disputes involving non-air ambulance 

services and 4,899 disputes involving air 

ambulance services would be submitted to the 

Federal IDR process during the first year of 

implementation, totaling 22,232 anticipated 

disputes. 

95U.S. Bureau of Labor Statistics (May 1, 2022). 

May 2022 National Occupational Employment and 

Wage Estimates. https://www.bls.gov/oes/current/ 

oes_nat.htm. 

with the current certified IDR entity fee 

structure, the total costs to disputing 

parties associated with this proposal is 

approximately $9 million ($89 million if 

finalized as proposed¥$80 million if 

the status quo fee ranges were to 

continue). 

The Departments seek comments on 

these estimates and assumptions. 

3. Uncertainties 

It is unclear whether the Federal IDR 

process would experience the same 

operating conditions, such as the 

number of disputes initiated, future 

policy changes finalized after future 

notice and comment rulemaking, and 

increased or decreased costs by the 

Departments to carry out the Federal 

IDR process. Due to the need to take 

point-in-time estimates of volume and 

expenditures for the purposes of 

developing the analyses in these rules, 

there is inherent uncertainty in the 

estimates in these analyses as the data 

are constantly changing. It is difficult to 

project the impact on the administrative 

fee amount charged to the parties if the 

Federal IDR process landscape changes. 

Although the Departments have 

analyzed the Federal IDR process data 

available to inform their projections, it 

is uncertain whether the trends in this 

data will remain applicable. The Federal 

IDR process is still in an early phase of 

implementation and has not yet 

achieved the stabilization that would 

likely occur with long-term uptake of 

the process. Initially, the Departments 

estimated that approximately 22,000 

disputes would be submitted to the 

process each year; 94 uptake of the 

process, however, rapidly outpaced that 

estimate, as dispute initiations have 

grown exponentially since 

implementation, and analysis has 

revealed an estimated number closer to 

340,000 annual initiated disputes is 

currently more accurate. At the same 

time, the Departments do not know 

what impact changes to the batching 

policy as a result of the Texas District 

Court’s opinion and order in TMA IV 

will have on the number of disputes 

being initiated and the time that it will 

take certified IDR entities to close those 

disputes. 

4. Regulatory Review Cost Estimation 

If regulations impose administrative 

costs on entities, such as the time 

needed to read and interpret rules, 

regulatory agencies should estimate the 

total cost associated with regulatory 

review. Based on comments received for 

the July 2021 interim final rules and 

October 2021 interim final rules, the 

Departments estimate that more than 

2,100 entities will review these 

proposed rules, including 1,500 issuers, 

205 third party administrators (TPAs), 

and at least 395 other interested parties 

(for example, State insurance 

departments, State legislatures, industry 

associations, advocacy organizations, 

and providers and provider 

organizations). The Departments 

acknowledge that this assumption may 

understate or overstate the number of 

entities that will review these proposed 

rules. 

Using the median hourly wage rate 

from the Bureau of Labor Statistics for 

a Lawyer (Code 23–1011) to account for 

average labor costs (including a 100 

percent increase for the cost of fringe 

benefits and other indirect costs), the 

Departments estimate that the cost of 

reviewing these proposed rules would 

be $130.52 per hour.95 The Departments 

estimate, based on an estimated rule 

length of approximately 22,000 words 

and an average reading speed of 200 to 

250 words per minute, that it would 

take each reviewing entity 

approximately 1.6 hours to review these 

proposed rules, with an associated cost 

of approximately $208.83 (1.6 hours × 

$130.52 per hour). Therefore, the 

Departments estimate that the total 

burden to review these proposed rules 

will be approximately 3,360 hours 

(2,100 reviewers × 1.6 hours per 

reviewer), with an associated cost of 

approximately $438,543 (2,100 

reviewers × $208.83 per reviewer). 

The Departments welcome comments 

on this approach to estimating the total 

burden and cost for interested parties to 

read and interpret these proposed rules. 

E. Regulatory Alternatives— 

Departments of Health and Human 

Services and Labor 

In developing these proposed rules, 

the Departments considered various 

alternative approaches. 

1. Administrative Fee Amount and 

Methodology (26 CFR 54.9816–8(d)(2), 

29 CFR 2590.716–8(d)(2), and 45 CFR 

149.510(d)(2)) 

In TMA IV, the Texas District Court 

indicated that notice and comment 

rulemaking is necessary to set the 

administrative fee amount. In light of 

the Texas District Court opinion and 

order, as well as the Departments’ 

assessment regarding the practicability 

of determining the administrative fee 

amount through notice and comment 

rulemaking, the Departments are of the 

view that alternative approaches would 

lead to unwarranted uncertainty. In 

addition, the Departments are of the 

view that providing a description of the 

methodology used to calculate the fee 

amount and proposing the 

administrative fee amount in these 

proposed rules would increase 

transparency for the parties and provide 

interested parties the opportunity to be 

included in the fee setting process. The 

Departments considered that guidance 

has historically set the administrative 

fee amount based on concerns that the 

requirement to collect fees sufficient to 

fund the Federal IDR process, and the 

lead time required to set the fee amount 

in notice and comment rulemaking, 

could constrain the Departments’ 

responsiveness to program needs and 

artificially inflate the administrative fee 

amount due to the need to ensure 

adequate funding of the process. 

However, in light of TMA IV, the 

Departments are of the view that the 

increased transparency and opportunity 

for interested parties to provide 

feedback on the administrative fee 

methodology and amount would 

outweigh the potential concern that the 

administrative fee might be artificially 

inflated by the need to make 

conservative estimates to set the 

administrative fee amount further in 

advance through notice and comment 

rulemaking. 

2. Certified IDR Entity Fee Ranges (26 

CFR 54.9816–8(e)(2), 29 CFR 2590.716– 

8(e)(2), and 45 CFR 149.510(e)(2)) 

The Departments considered 

maintaining the current policy that the 

allowable ranges for certified IDR entity 

fees would be set in guidance yearly 

instead of through notice and comment 

rulemaking. The Departments 

considered whether continuing to set 

the certified IDR entity fee ranges in 

guidance would preserve necessary 

flexibility for the certified IDR entities 

to choose their fees within the allowable 

ranges and submit those fees for 

approval to the Departments, and would 

allow the Departments time to review 

and approve each certified IDR entity’s 

fees and publish them in advance of the 

year to which the fees apply. The 

Departments balanced several 

considerations, including that certified 

IDR entities are ultimately able to 

choose their own fee within the ranges 

established in guidance by the 

Departments, and that setting the fee 


lotter on DSK11XQN23PROD with PROPOSALS1
65902 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

96 44 U.S.C. 3501 et seq. 

97The Departments expect that most self-insured 

group health plans will work with a TPA to meet 

the requirements. 

98 5 U.S.C. 601, et seq. 

99The Departments consulted with the Small 

Business Administration Office of Advocacy in 

making this determination, as required by 5 U.S.C. 

603(c) and 13 CFR 121.903(c) in a memo dated June 

4, 2020. 

100 29 U.S.C. 1024(a)(2). 

101 29 U.S.C. 1024(a)(3). 

102 29 U.S.C. 1024(a)(3). 

103 29 CFR 2520.104–20, 2520.104–21, 2520.104– 

41, 2520.104–46, and 2520.104b–10. 

104 13 CFR 121.201 (2011). 

105 15 U.S.C. 631 et seq. (2011). 

106Centers for Medicare & Medicaid Services 

(2022). Medical Loss Ratio Data and System 

Resources. https://www.cms.gov/CCIIO/Resources/ 

Data-Resources/mlr. 

107Non-issuer TPAs based on data derived from 

the 2016 benefit year reinsurance program 

contributions. 

108United States Small Business Administration 

(March 17, 2023). Table of Size Standards. https:// 

www.sba.gov/document/support-table-sizestandards. 

109Centers for Medicare & Medicaid Services 

(2022). Medical Loss Ratio Data and System 

Resources. https://www.cms.gov/CCIIO/Resources/ 

Data-Resources/mlr. 

110Based on data from the NAICS Association for 

NAICS code 62111, the Departments estimate the 

percent of businesses within the industry of Offices 

of Physicians with less than $16 million in annual 

sales. United States Census Bureau (May 2021). 

2017 SUSB Annual Data Tables by Establishment 

Industry. https://www.census.gov/data/tables/2017/ 

econ/susb/2017-susb-annual.html. 

111ASPE Office of Health Policy (September 10, 

2021). Air Ambulance Use and Surprise Billing. 

https://aspe.hhs.gov/sites/default/files/2021-09/ 

aspe-air-ambulance-ib-09-10-2021.pdf. 

ranges through guidance was intended 

to create a competitive market among 

the certified IDR entities to keep fees 

affordable, while ensuring that those 

entities are able to cover their costs. 

Setting the allowable ranges for certified 

IDR entity fees through notice and 

comment rulemaking is appropriate 

because it would increase transparency 

and provide an opportunity for the 

Departments to consider comments from 

interested parties. 

F. Paperwork Reduction Act 

These proposed rules are not subject 

to the requirements of the Paperwork 

Reduction Act of 1995,96 because they 

do not contain a collection of 

information as defined in 44 U.S.C. 

3502(3). Therefore, clearance by OMB 

under the Paperwork Reduction Act of 

1995 is not required. 

G. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601, et seq.) requires agencies 

to analyze options for regulatory relief 

of small entities and to prepare an 

initial regulatory flexibility analysis to 

describe the impact of these proposed 

rules on small entities, unless the head 

of the agency can certify that the rule 

would not have a significant economic 

impact on a substantial number of small 

entities. The RFA generally defines a 

‘‘small entity’’ as (1) a proprietary firm 

meeting the size standards of the Small 

Business Administration (SBA), (2) a 

not-for-profit organization that is not 

dominant in its field, or (3) a small 

government jurisdiction with a 

population of less than 50,000. States 

and individuals are not included in the 

definition of ‘‘small entity.’’ The 

Departments use a change in revenues 

of more than 3 to 5 percent as their 

measure of significant economic impact 

on a substantial number of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

governmental jurisdictions. 

The provisions in these proposed 

rules would affect plans (or their 

TPAs),97 health insurance issuers 

offering group or individual health 

insurance coverage, and providers, 

facilities, and providers of air 

ambulance services. 

For purposes of analysis under the 

RFA,98 the Departments consider an 

employee benefit plan with fewer than 

100 participants to be a small entity.99

The basis of this definition is found in 

section 104(a)(2) of ERISA,100 which 

permits the Secretary of Labor to 

prescribe simplified annual reports for 

plans that cover fewer than 100 

participants. Under section 104(a)(3),101

the Secretary may also provide for 

exemptions or simplified annual 

reporting and disclosure for welfare 

benefit plans. Under the authority of 

section 104(a)(3),102 the Department of 

Labor has previously issued simplified 

reporting provisions and limited 

exemptions from reporting and 

disclosure requirements for small plans, 

including unfunded or insured welfare 

plans, which cover fewer than 100 

participants and satisfy certain 

requirements.103 While some large 

employers have small plans, small plans 

are generally maintained by small 

employers. Thus, the Departments are of 

the view that assessing the impact of 

these proposed rules on small plans is 

an appropriate substitute for evaluating 

the effect on small entities. The 

definition of a small entity considered 

appropriate for this purpose differs, 

however, from a definition of a small 

business based on size standards issued 

by the SBA 104 in accordance with the 

Small Business Act.105

In 2021, there were 1,500 issuers in 

the U.S. health insurance market 106 and 

205 TPAs.107 Health insurance issuers 

are generally classified under the North 

American Industry Classification 

System (NAICS) code 524114 (Direct 

Health and Medical Insurance Carriers). 

According to SBA size standards,108

entities with average annual receipts of 

$47 million or less are considered small 

entities for this NAICS code. The 

Departments expect that few, if any, 

insurance companies underwriting 

health insurance policies fall below 

these size thresholds. Based on data 

from Medical Loss Ratio (MLR) annual 

report submissions for the 2021 MLR 

reporting year, approximately 87 out of 

483 issuers of health insurance coverage 

nationwide had total premium revenue 

of $47 million or less.109 However, it 

should be noted that over 77 percent of 

these small companies belong to larger 

holding groups, and many, if not all, of 

these small companies, are likely to 

have non-health lines of business that 

would result in their revenues 

exceeding $47 million. For the purposes 

of this analysis, the Departments assume 

8.6 percent, or 128 issuers, and 18 TPAs 

are considered small entities. 

These proposed rules would also 

affect health care providers due to the 

proposed requirements related to the 

certified IDR entity and administrative 

fees. The Departments estimate that 

140,270 physicians, on average, bill on 

an out-of-network basis. The number of 

small physicians is estimated based on 

the SBA’s size standards. The size 

standard applied for providers is NAICS 

62111 (Offices of Physicians), for which 

a business with less than $16 million in 

receipts is considered to be small. By 

this standard, the Departments estimate 

that 47.2 percent or 66,207 physicians 

are considered small under the SBA’s 

size standards.110 These proposed rules 

are also expected to affect nonphysician providers who bill on an outof-network basis. The Departments lack 

data on the number of non-physician 

providers who would be impacted. 

The Departments do not have the 

same level of data for the air ambulance 

subsector. In 2020, the total revenue of 

providers of air ambulance services was 

estimated to be $4.2 billion, with 1,114 

air ambulance bases.111 This results in 

an industry average of $3.8 million per 

air ambulance base. Accordingly, the 

Departments are of the view that most 

providers of air ambulance services are 

likely to be small entities. 

The proposed policies that would 

result in an increased burden to small 

entities are described below. 

The Departments propose to establish 

the administrative fee amount in notice 

and comment rulemaking, and the 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65903 

112Historically, less than 1 percent of disputes for 

emergency and non-emergency services have been 

submitted by group health plans, health insurance 

issuers, or FEHB carriers. U.S. Department of Health 

and Human Services, U.S. Department of Labor, and 

U.S. Department of Treasury (n.d.) Initial Report on 

the Federal Independent Dispute Resolution (IDR) 

Process, April 15–September 30, 2022. https://

www.cms.gov/files/document/initial-report-idrapril-15-september-30-2022.pdf. 

113 Data from the first full year of Federal IDR 

process operations show that initiating parties 

prevail in approximately 70 percent of disputes. See 

Centers for Medicare & Medicaid Services (April 27, 

2023). Federal Independent Dispute Resolution 

Process—Status Update. Therefore, as the 

prevailing party’s certified IDR entity fee is 

refunded per 26 CFR 54.9816–8T(d)(1)(ii), 29 CFR 

2590.716–8(d)(1)(ii), and 45 CFR 149.510(d)(1)(ii), 

initiating parties only pay the certified IDR entity 

fee for 30 percent of disputes, while non-initiating 

parties pay for the other 70 percent.https://

www.cms.gov/files/document/federal-idrprocessstatus-update-april-2023.pdf. Therefore, as 

the prevailing party’s certified IDR entity fee is 

refunded per 26 CFR 54.9816–8T(d)(1)(ii), 29 CFR 

2590.716–8(d)(1)(ii), and 45 CFR 149.510(d)(1)(ii), 

initiating parties only pay the certified IDR entity 

fee for 30 percent of disputes, while non-initiating 

parties pay for the other 70 percent. 

114United States Census Bureau (March 2020). 

2017 SUSB Annual Data Tables by Establishment 

Industry, Data by Enterprise Receipt Size. https:// 

www.census.gov/data/tables/2020/econ/susb/2020- 

susb-annual.html. 

115Historically, less than 1 percent of disputes for 

emergency and non-emergency services have been 

submitted by group health plans, health insurance 

issuers, or FEHB carriers. U.S. Department of Health 

and Human Services, U.S. Department of Labor, and 

U.S. Department of Treasury (n.d.) Initial Report on 

the Federal Independent Dispute Resolution (IDR) 

Process, April 15–September 30, 2022. https://

www.cms.gov/files/document/initial-report-idrapril-15-september-30-2022.pdf. 

116The total annual cost for small providers is 

estimated as: $22.5 million × 42.4 percent = 

$9,540,000. 

117The annual per-entity cost is estimated as: 

$9,540,000/66,207 small providers = $144.09. 

118The total annual cost for small issuers and 

TPAs is estimated as: $22.5 million × 0.2 percent 

= $45,000. 

119The annual per-entity cost for small issuers 

and TPAs is estimated as: $45,000/(128 issuers + 18 

TPAs) = $308.22. 

120Historically, less than 1 percent of disputes for 

emergency and non-emergency services have been 

submitted by group health plans, health insurance 

issuers, or FEHB carriers. U.S. Department of Health 

and Human Services, U.S. Department of Labor, and 

U.S. Department of Treasury (n.d.) Initial Report on 

the Federal Independent Dispute Resolution (IDR) 

Process, April 15–September 30, 2022. https://

www.cms.gov/files/document/initial-report-idrapril-15-september-30-2022.pdf. 

121The total annual cost for small providers is 

estimated as: $2,700,000 × 42.4 percent = 

$1,144,800. 

122The annual per-entity cost is estimated as: 

$1,144,800/66,207 small providers = $17.29. 

123The total annual cost for small issuers and 

TPAs is estimated as: $6,300,000 × 0.2 percent = 

$12,600. 

124The annual per-entity cost for small issuers 

and TPAs is estimated as: $12,600/(128 issuers + 18 

TPAs) = $86.30. 

125 340,000 claims/1,927,786 ERISA health plans 

= 18 percent (Source: 2020 Medical Expenditure 

Panel Survey-Insurance Component). 

126Fielder, M., Adler, L., Ippolito, B. (March 16, 

2021). Recommendations for Implementing the No 

Surprises Act. U.S.C.-Brookings Schaeffer on Health 

Policy. https://www.brookings.edu/blog/uscbrookings-schaeffer-on-health-policy/2021/03/16/ 

recommendations-for-implementing-the-nosurprises-act/. 

127United States Census Bureau (March 2020). 

2017 SUSB Annual Data Tables by Establishment 

Industry, Data by Enterprise Receipt Size. https:// 

www.census.gov/data/tables/2020/econ/susb/2020- 

susb-annual.html. 

Departments propose that the 

administrative fee amount for disputes 

initiated on or after of the effective date 

of these rules or on January 1, 2024, 

would be $150 per party. The total 

annual burden associated with this 

proposal is $45 million, split evenly 

between plans and issuers and 

providers, facilities, and providers of air 

ambulance services ($22.5 million 

each). For more details, please refer to 

the Regulatory Impact Analysis in these 

proposed rules. 

The Departments propose to establish 

the certified IDR entity fee ranges in 

notice and comment rulemaking, and 

the Departments propose that the ranges 

would be $200–$840 for single 

determinations and $268–$1,173 for 

batched determinations, with a $75– 

$250 tiered fee range for disputes that 

contain more than 25 line items. The 

total annual burden associated with this 

proposal is approximately $9 million, 

30 percent ($2.7 million) for providers, 

facilities, and providers of air 

ambulance services 112 and 70 percent 

($6.3 million) for plans and issuers.113

For more details, please refer to the 

Regulatory Impact Analysis in these 

proposed rules. 

To estimate the proportion of the total 

costs that would fall on small entities, 

the Departments assume that the 

proportion of costs is proportional to the 

industry receipts. Applying data from 

the Census Bureau of receipts by size for 

each industry, the Departments estimate 

that small issuers would incur 0.2 

percent of the total costs incurred by all 

issuers and small providers would incur 

42.4 percent of the total cost by all 

providers.114

For the proposal to set the 

administrative fee amount at $150 per 

party for disputes initiated on or after 

the later of the effective date of these 

rules or January 1, 2024, the 

Departments estimate that the total 

annual cost for small providers 115

would be $9,540,000.116 This results in 

a per-entity cost for small providers of 

$144.09.117 The Departments estimate 

that the total annual cost for small 

issuers and TPAs would be $45,000.118

This results in a per-entity cost for small 

issuers and TPAs of $308.22.119

For the proposal to set the certified 

IDR entity fee ranges at $200–$840 for 

single determinations and $268–$1,173 

for batched determinations, with a $75– 

$250 tiered fee range for disputes that 

contain more than 25 line items, the 

Departments estimate that the total 

annual cost for small providers 120

would be $1,144,800.121 This results in 

a per-entity cost for small providers of 

$17.29.122 The Departments estimate 

that the total annual cost for small 

issuers and TPAs would be $12,600.123

This results in a per-entity cost for small 

issuers and TPAs of $86.30.124

Thus, the total estimated annual cost 

for small issuers and TPAs is $57,600, 

and the total estimated annual cost for 

small providers is $10,684,800. The perentity annual cost for small issuers and 

TPAs is $394.52, and the per-entity 

annual cost for small providers is 

$161.38. 

The Departments seek comment on 

this analysis and seek information on 

the number of small plans (or TPAs), 

issuers, or providers that may be 

affected by the provisions in these 

proposed rules. 

The number of impacted small health 

plans is not significant compared to the 

total universe of 1.9 million small 

health plans. Assuming that 340,000 

disputes are submitted to the Federal 

IDR process each year, 18 percent of 

small health plans would be 

impacted.125 The number of impacted 

plans and issuers may be even smaller 

if some plans and issuers have multiple 

disputes that are batched in the Federal 

IDR process. By batching qualified IDR 

items and services, there may be a 

reduction in the per-service cost of the 

Federal IDR process, and potentially the 

aggregate administrative costs, because 

the Federal IDR process is likely to 

exhibit at least some economies of 

scale.126

As its measure of significant 

economic impact on a substantial 

number of small entities, HHS uses a 

change in revenue of more than 3 to 5 

percent. The Departments are of the 

view that this threshold will not be 

reached by the requirements in these 

proposed rules, given that the annual 

per-entity cost of $413.70 per small 

issuer/TPA represents 0.02 percent of 

the average annual receipts for a small 

issuer/TPA and the annual per-entity 

cost of $165.23 per small provider 

represents 0.01 percent of the average 

annual receipts for a small provider.127

Therefore, the Secretary has certified 

that these proposed rules will not have 


lotter on DSK11XQN23PROD with PROPOSALS1
65904 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

128 5 U.S.C. 603. 

129 26 U.S.C. 7805(f). 

130 2 U.S.C. 1511. 

a significant economic impact on a 

substantial number of small entities. 

In addition, section 1102(b) of the 

Paperwork Reduction Act requires the 

Departments to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 603 of the 

RFA.128 For purposes of section 1102(b) 

of the Paperwork Reduction Act, the 

Departments define a small rural 

hospital as a hospital that is located 

outside of a metropolitan statistical area 

and has fewer than 100 beds. While 

these proposed rules are not subject to 

section 1102 of the Paperwork 

Reduction Act, the Departments have 

determined that these proposed rules 

will not affect small rural hospitals. 

Therefore, the Secretary has certified 

that these proposed rules will not have 

a significant impact on the operations of 

a substantial number of small rural 

hospitals. 

H. Special Analyses—Department of the 

Treasury 

Pursuant to the Memorandum of 

Agreement, Review of Treasury 

Regulations under Executive Order 

12866 (June 9, 2023), tax regulatory 

actions issued by the IRS are not subject 

to the requirements of section 6 of 

Executive Order 12866, as amended. 

Therefore, a regulatory impact 

assessment is not required. Pursuant to 

section 7805(f) of the Code,129 these 

regulations have been submitted to the 

Chief Counsel for Advocacy of the Small 

Business Administration for comment 

on their impact on small business. 

I. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 

(UMRA) 130 requires that agencies assess 

anticipated costs and benefits and take 

certain other actions before issuing a 

proposed rule or any final rule for 

which a general notice of proposed 

rulemaking was published that includes 

any Federal mandate that may result in 

expenditures in any 1 year by State, 

local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million in 1995 dollars, updated 

annually for inflation. That threshold is 

approximately $177 million in 2023. As 

discussed earlier in the RIA, plans, 

issuers, TPAs, and providers, facilities, 

and providers of air ambulance services 

would incur costs to comply with the 

provisions of these proposed rules. The 

Departments estimate the combined 

impact on State, local, or tribal 

governments and the private sector 

would not be above the threshold. 

J. Federalism 

Executive Order 13132 outlines the 

fundamental principles of federalism. It 

requires adherence to specific criteria by 

Federal agencies in formulating and 

implementing policies that have 

‘‘substantial direct effects’’ on the 

States, the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among the various 

levels of government. Federal agencies 

issuing regulations that have these 

federalism implications must consult 

with State and local officials and 

describe the extent of their consultation 

and the nature of the concerns of State 

and local officials in the preamble to 

these proposed rules. 

The Departments do not anticipate 

that these proposed rules would have 

federalism implications or limit the 

policy-making discretion of the States in 

compliance with the requirement of 

Executive Order 13132. 

State and local government health 

plans may be subject to the Federal IDR 

process where a specified State law or 

All-Payer Model Agreement does not 

apply. The No Surprises Act authorizes 

States to enforce the new requirements, 

including those related to balance 

billing, for issuers, providers, facilities, 

and providers of air ambulance services, 

with HHS enforcing only in cases where 

the State has notified HHS that the State 

does not have the authority to enforce 

or is otherwise not enforcing, or HHS 

has made a determination that a State 

has failed to substantially enforce the 

requirements. However, in the 

Departments’ view, the federalism 

implications of these proposed rules are 

substantially mitigated because some 

States have their own process for 

determining the total amount payable 

under a plan or coverage for out-ofnetwork emergency services and to outof-network providers for patient visits to 

in-network facilities for non-emergency 

services. Where a State has a specified 

State law, the State law, rather than the 

Federal IDR process, would apply. 

In compliance with the requirement 

of Executive Order 13132 that agencies 

examine closely any policies that may 

have federalism implications or limit 

the policy making discretion of the 

States, the Departments have engaged in 

efforts to consult with and work 

cooperatively with affected States, 

including participating in conference 

calls with and attending conferences of 

the National Association of Insurance 

Commissioners and consulting with 

State insurance officials on an 

individual basis. 

While developing these rules, the 

Departments attempted to balance the 

States’ interests in regulating health 

insurance issuers with the need to 

ensure market stability. By doing so, the 

Departments complied with the 

requirements of Executive Order 13132. 

Douglas W. O’Donnell, 

Deputy Commissioner for Services and 

Enforcement, Internal Revenue Service. 

Lisa M. Gomez 

Assistant Secretary, Employee Benefits 

Security Administration, Department of 

Labor. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

List of Subjects 

26 CFR Part 54 

Excise taxes, Pensions, Reporting and 

recordkeeping requirements. 

29 CFR Part 2590 

Child support, Employee benefit 

plans, Health care, Health insurance, 

Infants and children, Maternal and child 

health, Penalties, Pensions, Privacy, 

Reporting and recordkeeping 

requirements. 

45 CFR Part 149 

Administrative practice and 

procedure, Health care, Health 

insurance, Insurance companies, 

Penalties, Reporting, and recordkeeping 

requirements. 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 54 

Accordingly, the Department of the 

Treasury and the IRS proposes to amend 

26 CFR part 54 as follows: 

PART 54—PENSION EXCISE TAXES 

■ 1. The authority citation for part 54 is 

amended by adding an entry for 

§ 54.9816–8 in numerical order to read 

in part as follows: 

Authority: 26 U.S.C. 7805 * * * 

* * * * * 

Section 54.9816–8 also issued under 26 

U.S.C. 9816. 

* * * * * 

■ 2. Section 54.9816–8 is amended by 

revising paragraphs (a) through (e) and 

the headings for paragraphs (f) and (g) 

to read as follows: 

§ 54.9816–8 Independent dispute 

resolution process. 

(a) Scope and definitions. For further 

guidance, see § 54.9816–8T(a). 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65905 

(b) Determination of payment amount 

through open negotiation and initiation 

of the Federal IDR process. For further 

guidance, see § 54.9816–8T(b). 

(c) Federal IDR process following 

initiation. For further guidance, see 

§ 54.9816–8T(c). 

(d) Costs of IDR process. (1) Certified 

IDR entity fee. For further guidance, see 

§ 54.9816–8T(d)(1). 

(2) Administrative fee. (i) For further 

guidance, see § 54.9816–8T(d)(2)(i). 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking in a manner such 

that the total administrative fees paid 

for a year are estimated to be equal to 

the projected amount of expenditures 

made by the Secretaries of the Treasury, 

Labor, and Health and Human Services 

for the year in carrying out the Federal 

IDR process. For disputes initiated on or 

after the later of the effective date of 

Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, the 

administrative fee amount is $150 per 

party per dispute and will remain in 

effect until changed by subsequent 

rulemaking. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) through (ix) of this section 

held to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of these paragraphs is invalid 

and unenforceable in all circumstances, 

in which event the provision shall be 

severable from the remainder of these 

paragraphs and shall not affect the 

remainder thereof. 

(ii) The provisions in paragraphs (d) 

and (e)(2)(vii) through (ix) of this 

section are intended to be severable 

from each other. 

(e) Certification of IDR entity—(1) In 

general. For further guidance see 

§ 54.9816–8T(e)(1). 

(2) Requirements. (i) through (vi). For 

further guidance, see § 54.8616– 

8T(e)(2)(i) through (vi). 

(vii) Provide, on an annual basis, a 

fixed fee for single determinations and 

separate fixed fees for batched 

determinations, as well as additional 

fixed tiered fees for batched disputes, if 

applicable, within the upper and lower 

limits for each, as established by the 

Secretary in notice and comment 

rulemaking. The certified IDR entity fee 

ranges established by the Secretary in 

rulemaking will remain in effect until 

changed by subsequent rulemaking. The 

certified IDR entity may not charge a fee 

outside the limits set forth in 

rulemaking unless the certified IDR 

entity or IDR entity seeking certification 

receives advance written approval from 

the Secretary to charge a fixed fee 

beyond the upper or lower limits. The 

certified IDR entity or IDR entity seeking 

certification may also seek advance 

written approval from the Secretary to 

update its fees more frequently than 

once annually. If a certified IDR entity 

or IDR entity seeking certification 

submits to the Secretary a request to 

charge a fixed fee beyond the upper or 

lower limits for fees as set forth in 

rulemaking, the Secretary will use their 

discretion to determine if the 

information submitted by a certified IDR 

entity or IDR entity seeking certification 

demonstrates that the proposed change 

to the certified IDR entity fee would 

ensure the certified IDR entity’s 

financial viability and would not 

impose on parties an undue barrier to 

accessing the Federal IDR process. In 

order for the certified IDR entity to 

receive the Secretary’s written approval 

to charge a fee beyond the upper or 

lower limits for fees as set forth in 

rulemaking, or to modify the fixed fees 

more than once annually, it must satisfy 

the conditions in both paragraphs 

(e)(2)(vii)(A) and (B) of this section, as 

follows: 

(A) Submit, in writing, a proposal to 

the Secretary that includes: 

(1) If requesting to charge a fixed fee 

beyond the upper or lower limits for 

fees as set forth in rulemaking: 

(i) The alternative fixed fee the 

certified IDR entity or IDR entity seeking 

certification believes is appropriate for 

the certified IDR entity or IDR entity 

seeking certification to charge; 

(ii) A description of the circumstances 

that require the alternative fee; and 

(iii) A description that reasonably 

explains how the alternative fixed fee 

will be used to mitigate the effects of 

those circumstances; or 

(2) If requesting to modify the fixed 

fee more than once annually: 

(i) The fixed fee the certified IDR 

entity is seeking to charge; 

(ii) A description of the circumstances 

that require a change to its fixed fee; and 

(iii) A detailed description that 

reasonably explains how the change to 

its fixed fee will be used to mitigate the 

effects of those circumstances. 

(B) Receive from the Secretary, the 

Secretary of Health and Human 

Services, and the Secretary of Labor 

written approval to charge the fee 

documented in the certified IDR entity’s 

or the IDR entity seeking certification’s 

written proposal. 

(viii) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for single 

determinations within the range of $200 

to $840, unless a fee not within that 

range is approved by the Secretary 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. The range for the 

certified IDR entity fee for single 

determinations will remain in effect 

until changed by subsequent 

rulemaking. 

(ix) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for batched 

determinations within the range of $268 

to $1,173, unless a fee not within that 

range is approved by the Secretary 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. As part of the 

batched determination fee, certified IDR 

entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for batched determinations will remain 

in effect until changed by subsequent 

rulemaking. 

(x) through (xiii). For further 

guidance, see § 54.9816–8T(e)(2)(x) 

through (xiii). 

(f) Reporting of information relating to 

the Federal IDR process. * * * 

(g) Extension of time periods for 

extenuating circumstances. * * * 

* * * * * 

■ 3. Section 54.9816–8T is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Revising paragraph (e)(2)(vii) 

■ d. Redesignating paragraphs 

(e)(2)(viii) through (xi) as paragraphs 

(e)(2)(x) through (xiii); 

■ e. Adding new paragraphs (e)(2)(viii) 

and (ix). 

The revisions and additions read as 

follows: 

§ 54.9816–8T Independent dispute 

resolution process (temporary). 

* * * * * 

(d) * * * 

(2) * * * 

(ii) For further guidance, see 

§ 54.9816–8(d)(2)(ii). 

(3) Severability. For further guidance, 

see § 54.9816–8(d)(3). 


lotter on DSK11XQN23PROD with PROPOSALS1
65906 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

(e) * * * 

(2) * * * 

(vii) and (ix). For further guidance, 

see § 54.9816–8(e)(2)(vii) and (ix). 

* * * * * 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

29 CFR Chapter XXV 

For the reasons stated in the 

preamble, the Department of Labor 

proposes to amend 29 CFR part 2590 as 

set forth below: 

PART 2590—RULES AND 

REGULATIONS FOR GROUP HEALTH 

PLANS 

■ 4. The authority citation for part 2590 

continues to read as follows: 

Authority: 29 U.S.C. 1027, 1059, 1135, 

1161–1168, 1169, 1181–1183, 1181 note, 

1185, 1185a, 1185b, 1191, 1191a, 1191b, and 

1191c; sec. 101(g), Pub. L. 104–191, 110 Stat. 

1936; sec. 401(b), Pub. L. 105–200, 112 Stat. 

645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 

110–343, 122 Stat. 3881; sec. 1001, 1201, and 

1562(e), Pub. L. 111–148, 124 Stat. 119, as 

amended by Pub. L. 111–152, 124 Stat. 1029; 

Division M, Pub. L. 113–235, 128 Stat. 2130; 

Secretary of Labor’s Order 1–2011, 77 FR 

1088 (Jan. 9, 2012). 

■ 5. Section 2590.716–8 is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Revising paragraph (e)(2)(vii); 

■ d. Redesignating paragraphs 

(e)(2)(viii) through (xi) as paragraphs 

(e)(2)(x) through (xiii); and 

■ e. Adding new paragraphs (e)(2)(viii) 

and (ix). 

The revisions and additions read as 

follows: 

§ 2590.716–8 Independent dispute 

resolution process. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking in a manner such 

that the total administrative fees paid 

for a year are estimated to be equal to 

the projected amount of expenditures 

made by the Secretaries of the Treasury, 

Labor, and Health and Human Services 

for the year in carrying out the Federal 

IDR process. For disputes initiated on or 

after the later of the effective date of 

Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, the 

administrative fee amount is $150 per 

party per dispute, which will remain in 

effect until changed by subsequent 

rulemaking. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) through (ix) of this section 

held to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of these paragraphs is invalid 

and unenforceable in all circumstances, 

in which event the provision shall be 

severable from the remainder of these 

paragraphs and shall not affect the 

remainder thereof. 

(ii) The provisions in paragraphs 

(d)(2) and (e)(2)(vii), (viii), and (ix) of 

this section are intended to be severable 

from each other. 

(e) * * * 

(2) * * * 

(vii) Provide, on an annual basis, a 

fixed fee for single determinations and 

separate fixed fees for batched 

determinations, as well as additional 

fixed tiered fees for batched disputes, if 

applicable, within the upper and lower 

limits for each, as established by the 

Secretary in notice and comment 

rulemaking. The certified IDR entity fee 

ranges established by the Secretary in 

rulemaking will remain in effect until 

changed by subsequent rulemaking. The 

certified IDR entity may not charge a fee 

outside the limits set forth in 

rulemaking unless the certified IDR 

entity or IDR entity seeking certification 

receives advance written approval from 

the Secretary to charge a fixed fee 

beyond the upper or lower limits. The 

certified IDR entity or IDR entity seeking 

certification may also seek advance 

written approval from the Secretary to 

update its fees more frequently than 

once annually. If a certified IDR entity 

or IDR entity seeking certification 

submits to the Secretary a request to 

charge a fixed fee beyond the upper or 

lower limited for fees set forth in 

rulemaking, the Secretary will use their 

discretion to determine if the 

information submitted by the certified 

IDR entity or entity seeking certification 

demonstrates that the proposed change 

to the certified IDR entity fee would 

ensure the certified IDR entity’s 

financial viability and would not 

impose on parties an undue barrier 

accessing the Federal IDR process. In 

order for the certified IDR entity to 

receive the Secretary’s written approval 

to charge a fee beyond the upper or 

lower limits for fees as set forth in 

rulemaking, or to modify the fixed fees 

more than once annually, it must satisfy 

the conditions in both paragraphs 

(e)(2)(vii)(A) and (B) of this section, as 

follows: 

(A) Submit, in writing, a proposal to 

the Secretary that includes: 

(1) If requesting to charge a fixed fee 

beyond the upper or lower limits for 

fees as set forth in rulemaking: 

(i) The alternative fixed fee the 

certified IDR entity or IDR entity seeking 

certification believes is appropriate for 

the certified IDR entity or IDR entity 

seeking certification to charge; 

(ii) A description of the circumstances 

that require the alternative fee; and 

(iii) A description that reasonably 

explains how the alternative fixed fee 

will be used to mitigate the effects of 

those circumstances; or 

(2) If requesting to modify the fixed 

fee more than once annually: 

(i) The fixed fee the certified IDR 

entity is seeking to charge; 

(ii) A description of the circumstances 

that require a change to its fixed fee; and 

(iii) A detailed description that 

reasonably explains how the change to 

its fixed fee will be used to mitigate the 

effects of those circumstances. 

(B) Receive from the Secretary, the 

Secretary of the Treasury, and the 

Secretary of Health and Human 

Services, written approval to charge the 

fee documented in the certified IDR 

entity’s or the IDR entity seeking 

certification’s written proposal. 

(viii) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for single 

determinations within the range of $200 

to $840, unless a fee not within that 

range is approved by the Secretary 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. The range for the 

certified IDR entity fee for single 

determinations will remain in effect 

until changed by subsequent 

rulemaking. 

(ix) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for batched 

determinations within the range of $268 

to $1,173, unless a fee not within that 

range is approved by the Secretary 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. As part of the 

batched determination fee, certified IDR 

entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65907 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for batched determinations will remain 

in effect until changed by subsequent 

rulemaking. 

* * * * * 

For the reasons stated in the 

preamble, the Department of Health and 

Human Services proposes to amend 45 

CFR part 149 as set forth below: 

PART 149—SURPRISE BILLING AND 

TRANSPARENCY REQUIREMENTS 

■ 6. The authority citation for part 149 

continues to read as follows: 

Authority: 42 U.S.C. 300gg–92 and 300gg– 

111 through 300gg–139, as amended. 

■ 7. Section 149.510 is amended by: 

■ a. Revising paragraph (d)(2)(ii); 

■ b. Adding paragraph (d)(3); 

■ c. Revising paragraph (e)(2)(vii); 

■ d. Redesignating paragraphs 

(e)(2)(viii) through (xi) as paragraphs 

(e)(2)(x) through (xiii); and 

■ e. Adding new paragraphs (e)(2)(viii) 

and (ix). 

The revisions and additions read as 

follows: 

§ 149.510 Independent dispute resolution 

process. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) The administrative fee amount 

will be established through notice and 

comment rulemaking in a manner such 

that the total administrative fees paid 

for a year are estimated to be equal to 

the projected amount of expenditures 

made by the Secretaries of the Treasury, 

Labor, and Health and Human Services 

for the year in carrying out the Federal 

IDR process. For disputes initiated on or 

after the later of the effective date of 

Federal Independent Dispute Resolution 

(IDR) Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, the 

administrative fee amount is $150 per 

party per dispute, which will remain in 

effect until changed by subsequent 

rulemaking. 

(3) Severability. (i) Any provision of 

this paragraph (d) or paragraphs 

(e)(2)(vii) through (ix) of this section 

held to be invalid or unenforceable as 

applied to any person or circumstance 

shall be construed so as to continue to 

give the maximum effect to the 

provision permitted by law, including 

as applied to persons not similarly 

situated or to dissimilar circumstances, 

unless such holding is that the 

provision of these paragraphs is invalid 

and unenforceable in all circumstances, 

in which event the provision shall be 

severable from the remainder of these 

paragraphs and shall not affect the 

remainder thereof. 

(ii) The provisions in this paragraph 

(d) and paragraphs (e)(2)(vii) through 

(ix) of this section are intended to be 

severable from each other. 

(e) * * * 

(2) * * * 

(vii) Provide, on an annual basis, a 

fixed fee for single determinations and 

a separate fixed fee for batched 

determinations, as well as an additional 

fixed tiered fee for batched disputes, if 

applicable, within the upper and lower 

limits for each, as established by the 

Secretary in notice and comment 

rulemaking. The certified IDR entity fee 

ranges established by the Secretary in 

rulemaking will remain in effect until 

changed by subsequent rulemaking. The 

certified IDR entity may not charge a fee 

outside the limits set forth in 

rulemaking unless the certified IDR 

entity or IDR entity seeking certification 

receives advance written approval from 

the Secretary to charge a fixed fee 

beyond the upper or lower limits. The 

certified IDR entity or IDR entity seeking 

certification may also seek advance 

written approval from the Secretary to 

update its fees more frequently than 

once annually. If a certified IDR entity 

or IDR entity seeking certification 

submits to the Secretary a request to 

charge a fixed fee beyond the upper or 

lower limits for fees as set forth in 

rulemaking, the Secretary will use their 

discretion to determine if the 

information submitted by a certified IDR 

entity or IDR entity seeking certification 

demonstrates that the proposed change 

to the certified IDR entity fee would 

ensure the certified IDR entity’s 

financial viability and would not 

impose on parties an undue barrier to 

accessing the Federal IDR process. In 

order for the certified IDR entity to 

receive the Secretary’s written approval 

to charge a fee beyond the upper or 

lower limits for fees as set forth in 

rulemaking, or to modify the fixed fees 

more than once annually, it must satisfy 

the conditions in both paragraphs 

(e)(2)(vii)(A) and (B) of this section, as 

follows: 

(A) Submit, in writing, a proposal to 

the Secretary that includes: 

(1) If requesting to charge a fixed fee 

beyond the upper or lower limits for 

fees as set forth in rulemaking: 

(i) The alternative fixed fee the 

certified IDR entity or IDR entity seeking 

certification believes is appropriate for 

the certified IDR entity or IDR entity 

seeking certification to charge; 

(ii) A description of the circumstances 

that require the alternative fee; and 

(iii) A description that reasonably 

explains how the alternative fixed fee 

will be used to mitigate the effects of 

those circumstances; or 

(2) If requesting to modify the fixed 

fee more than once annually: 

(i) The fixed fee the certified IDR 

entity is seeking to charge; 

(ii) A description of the circumstances 

that require a change to its fixed fee; and 

(iii) A detailed description that 

reasonably explains how the change to 

its fixed fee will be used to mitigate the 

effects of those circumstances. 

(B) Receive from the Secretary, the 

Secretary of the Treasury, and the 

Secretary of Labor, written approval to 

charge the fee documented in the 

certified IDR entity’s or the IDR entity 

seeking certification’s written proposal. 

(viii) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for single 

determinations within the range of $200 

to $840, unless a fee not within that 

range is approved by the Secretary, 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. The range for the 

certified IDR entity fee for single 

determinations will remain in effect 

until changed by subsequent 

rulemaking. 

(ix) For disputes initiated on or after 

the later of the effective date of Federal 

Independent Dispute Resolution (IDR) 

Process Administrative Fee and 

Certified IDR Entity Fee Ranges final 

rules or January 1, 2024, certified IDR 

entities are permitted to charge a fixed 

certified IDR entity fee for batched 

determinations within the range of $268 

to $1,173, unless a fee not within that 

range is approved by the Secretary 

pursuant to paragraphs (e)(2)(vii)(A) and 

(B) of this section. As part of the 

batched determination fee, certified IDR 

entities are permitted to charge an 

additional fixed tiered fee within the 

range of $75 to $250 for every additional 

25 line items within a batched dispute, 

beginning with the 26th line item. The 

ranges for the certified IDR entity fees 

for batched determinations will remain 

in effect until changed by subsequent 

rulemaking. 

* * * * * 

[FR Doc. 2023–20799 Filed 9–21–23; 4:15 pm] 

BILLING CODE 4830–01–P; 4510–29–P; 4120–01–P 


lotter on DSK11XQN23PROD with PROPOSALS1