4133 
‘‘(4) CERTIFICATION AND SELECTION OF IDR EN-
TITIES.— 
‘‘(A) IN GENERAL.—The Secretary, jointly 
with the Secretary of Health and Human Serv-
ices and the Secretary of Labor, shall establish a 
process to certify (including to recertify) entities 
under this paragraph. Such process shall ensure 
that an entity so certified— 
‘‘(i) has (directly or through contracts 
or other arrangements) sufficient medical, 
legal, and other expertise and sufficient 
staffing to make determinations described in 
paragraph (5) on a timely basis; 
‘‘(ii) is not— 
‘‘(I) a group health plan, pro-
vider, or facility; 
‘‘(II) an affiliate or a subsidiary 
of such a group health plan, provider, 
or facility; or 
‘‘(III) an affiliate or subsidiary of 
a professional or trade association of 
such group health plans or of providers 
or facilities; 
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‘‘(iii) carries out the responsibilities of 
such an entity in accordance with this sub-
section; 
‘‘(iv) meets appropriate indicators of 
fiscal integrity; 
‘‘(v) maintains the confidentiality (in 
accordance with regulations promulgated by 
the Secretary) of individually identifiable 
health information obtained in the course of 
conducting such determinations; 
‘‘(vi) does not under the IDR process 
carry out any determination with respect to 
which the entity would not pursuant to sub-
clause (I), (II), or (III) of subparagraph 
(F)(i) be eligible for selection; and 
‘‘(vii) meets such other requirements as 
determined appropriate by the Secretary. 
‘‘(B) PERIOD OF CERTIFICATION.—Subject 
to subparagraph (C), each certification (includ-
ing a recertification) of an entity under the 
process described in subparagraph (A) shall be 
for a 5-year period. 
‘‘(C) REVOCATION.—A certification of an 
entity under this paragraph may be revoked 
under the process described in subparagraph (A) 
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4135 
if the entity has a pattern or practice of non-
compliance with any of the requirements de-
scribed in such subparagraph. 
‘‘(D) PETITION
FOR
DENIAL
OR
WITH-
DRAWAL.—The process described in subpara-
graph (A) shall ensure that an individual, pro-
vider, facility, or group health plan may petition 
for a denial of a certification or a revocation of 
a certification with respect to an entity under 
this paragraph for failure of meeting a require-
ment of this subsection. 
‘‘(E) SUFFICIENT NUMBER OF ENTITIES.— 
The process described in subparagraph (A) shall 
ensure that a sufficient number of entities are 
certified under this paragraph to ensure the 
timely and efficient provision of determinations 
described in paragraph (5). 
‘‘(F) SELECTION OF CERTIFIED IDR ENTI-
TY.—The Secretary shall, with respect to the de-
termination of the amount of payment under 
this subsection of an item or service, provide for 
a method— 
‘‘(i) that allows for the group health 
plan and the nonparticipating provider or 
the nonparticipating emergency facility (as 
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4136 
applicable) involved in a notification under 
paragraph (1)(B) to jointly select, not later 
than the last day of the 3-business day pe-
riod following the date of the initiation of 
the process with respect to such item or 
service, for purposes of making such deter-
mination, an entity certified under this 
paragraph that— 
‘‘(I) is not a party to such deter-
mination or an employee or agent of 
such a party; 
‘‘(II) does not have a material fa-
milial, financial, or professional rela-
tionship with such a party; and 
‘‘(III) does not otherwise have a 
conflict of interest with such a party 
(as determined by the Secretary); and 
‘‘(ii) that requires, in the case such 
parties do not make such selection by such 
last day, the Secretary to, not later than 6 
business days after such date of initiation— 
‘‘(I) select such an entity that sat-
isfies subclauses (I) through (III) of 
clause (i)); and 
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‘‘(II) provide notification of such 
selection to the provider or facility (as 
applicable) and the plan or issuer (as 
applicable) party to such determina-
tion. 
An entity selected pursuant to the previous sentence to make 
a determination described in such sentence shall be referred 
to in this subsection as the ‘certified IDR entity’ with re-
spect to such determination. 
‘‘(5) PAYMENT DETERMINATION.— 
‘‘(A) IN GENERAL.—Not later than 30 days 
after the date of selection of the certified IDR en-
tity with respect to a determination for a quali-
fied IDR item or service, the certified IDR entity 
shall— 
‘‘(i) taking into account the consider-
ations specified in subparagraph (C), select 
one of the offers submitted under subpara-
graph (B) to be the amount of payment for 
such item or service determined under this 
subsection for purposes of subsection (a)(1) 
or (b)(1), as applicable; and 
‘‘(ii) notify the provider or facility and 
the group health plan party to such deter-
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4138 
mination of the offer selected under clause 
(i). 
‘‘(B) SUBMISSION
OF
OFFERS.—Not later 
than 10 days after the date of selection of the 
certifed IDR entity with respect to a determina-
tion for a qualified IDR item or service, the pro-
vider or facility and the group health plan party 
to such determination— 
‘‘(i) shall each submit to the certified 
IDR entity with respect to such determina-
tion— 
‘‘(I) an offer for a payment 
amount for such item or service fur-
nished by such provider or facility; 
and 
‘‘(II) such information as re-
quested by the certified IDR entity re-
lating to such offer; and 
‘‘(ii) may each submit to the certified 
IDR entity with respect to such determina-
tion any information relating to such offer 
submitted by either party, including infor-
mation relating to any circumstance de-
scribed in subparagraph (C)(ii). 
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4139 
‘‘(C) 
CONSIDERATIONS
IN
DETERMINA-
TION.— 
‘‘(i) IN
GENERAL.—In determining 
which offer is the payment to be applied 
pursuant to this paragraph, the certified 
IDR entity, with respect to the determina-
tion for a qualified IDR item or service 
shall consider— 
‘‘(I) 
the 
qualifying 
payment 
amounts (as defined in subsection 
(a)(3)(E)) for the applicable year for 
items or services that are comparable 
to the qualified IDR item or service 
and that are furnished in the same ge-
ographic region (as defined by the Sec-
retary for purposes of such subsection) 
as such qualified IDR item or service; 
and 
‘‘(II) subject to subparagraph (D), 
information on any circumstance de-
scribed in clause (ii), such information 
as 
requested 
in 
subparagraph 
(B)(i)(II), and any additional infor-
mation 
provided 
in 
subparagraph 
(B)(ii). 
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4140 
‘‘(ii) ADDITIONAL
CIRCUMSTANCES.— 
For purposes of clause (i)(II), the cir-
cumstances described in this clause are, 
with respect to a qualified IDR item or 
service of a nonparticipating provider, non-
participating emergency facility, or group 
health plan, the following: 
‘‘(I) The level of training, experi-
ence, and quality and outcomes meas-
urements of the provider or facility 
that furnished such item or service 
(such as those endorsed by the con-
sensus-based entity authorized in sec-
tion 1890 of the Social Security Act). 
‘‘(II) The market share held by 
the nonparticipating provider or facil-
ity or that of the plan or issuer in the 
geographic region in which the item or 
service was provided. 
‘‘(III) The acuity of the indi-
vidual receiving such item or service or 
the complexity of furnishing such item 
or service to such individual. 
‘‘(IV) The teaching status, case 
mix, and scope of services of the non-
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4141 
participating facility that furnished 
such item or service. 
‘‘(V) Demonstrations of good faith 
efforts (or lack of good faith efforts) 
made by the nonparticipating provider 
or nonparticipating facility or the 
plan or issuer to enter into network 
agreements and, if applicable, con-
tracted rates between the provider or 
facility, as applicable, and the plan or 
issuer, as applicable, during the pre-
vious 4 plan years. 
‘‘(D) PROHIBITION ON CONSIDERATION OF 
CERTAIN FACTORS.—In determining which offer 
is the payment to be applied with respect to 
qualified IDR items and services furnished by a 
provider or facility, the certified IDR entity with 
respect to a determination shall not consider 
usual and customary charges, the amount that 
would have been billed by such provider or facil-
ity with respect to such items and services had 
the provisions of section 2799B–1 of the Public 
Health Service Act or 2799B–2 of such Act (as 
applicable) not applied, or the payment or reim-
bursement rate for such items and services fur-
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4142 
nished by such provider or facility payable by a 
public payor, including under the Medicare pro-
gram under title XVIII of the Social Security 
Act, under the Medicaid program under title 
XIX of such Act, under the Children’s Health In-
surance Program under title XXI of such Act, 
under the TRICARE program under chapter 55 
of title 10, United States Code, or under chapter 
17 of title 38, United States Code. 
‘‘(E) EFFECTS OF DETERMINATION.— 
‘‘(i) IN GENERAL.—A determination of 
a certified IDR entity under subparagraph 
(A)— 
‘‘(I) shall be binding upon the 
parties involved, in the absence of a 
fraudulent claim or evidence of mis-
representation of facts presented to the 
IDR entity involved regarding such 
claim; and 
‘‘(II) shall not be subject to judi-
cial review, except in a case described 
in any of paragraphs (1) through (4) 
of section 10(a) of title 9, United 
States Code. 
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4143 
‘‘(ii) SUSPENSION OF CERTAIN SUBSE-
QUENT IDR REQUESTS.—In the case of a de-
termination of a certified IDR entity under 
subparagraph (A), with respect to an initial 
notification submitted under paragraph 
(1)(B) with respect to qualified IDR items 
and services and the two parties involved 
with such notification, the party that sub-
mitted such notification may not submit 
during the 90-day period following such de-
termination a subsequent notification under 
such paragraph involving the same other 
party to such notification with respect to 
such an item or service that was the subject 
of such initial notification. 
‘‘(iii) SUBSEQUENT
SUBMISSION
OF 
REQUESTS PERMITTED.—In the case of a 
notification that pursuant to clause (ii) is 
not permitted to be submitted under para-
graph (1)(B) during a 90-day period speci-
fied in such clause, if the end of the open 
negotiation period specified in paragraph 
(1)(A), that but for this clause would other-
wise apply with respect to such notification, 
occurs during such 90-day period, such 
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paragraph (1)(B) shall be applied as if the 
reference in such paragraph to the 4-day 
period beginning on the day after such open 
negotiation period were instead a reference 
to the 30-day period beginning on the day 
after the last day of such 90-day period. 
‘‘(iv) REPORTS.—The Secretary, joint-
ly with the Secretary of Labor and the Sec-
retary of the Health and Human Services, 
shall examine the impact of the application 
of clause (ii) and whether the application of 
such clause delays payment determinations 
or impacts early, alternative resolution of 
claims (such as through open negotiations), 
and shall submit to Congress, not later than 
2 years after the date of implementation of 
such clause an interim report (and not later 
than 4 years after such date of implementa-
tion, a final report) on whether any group 
health plans or health insurance issuers of-
fering group or individual health insurance 
coverage or types of such plans or coverage 
have a pattern or practice of routine denial, 
low payment, or down-coding of claims, or 
otherwise abuse the 90-day period described 
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in such clause, including recommendations 
on ways to discourage such a pattern or 
practice. 
‘‘(F) COSTS
OF
INDEPENDENT
DISPUTE 
RESOLUTION PROCESS.—In the case of a notifi-
cation under paragraph (1)(B) submitted by a 
nonparticipating 
provider, 
nonparticipating 
emergency facility, or group health plan and 
submitted to a certified IDR entity— 
‘‘(i) if such entity makes a determina-
tion with respect to such notification under 
subparagraph (A), the party whose offer is 
not chosen under such subparagraph shall 
be responsible for paying all fees charged by 
such entity; and 
‘‘(ii) if the parties reach a settlement 
with respect to such notification prior to 
such a determination, each party shall pay 
half of all fees charged by such entity, unless 
the parties otherwise agree. 
‘‘(6) TIMING OF PAYMENT.—The total plan pay-
ment required pursuant to subsection (a)(1) or (b)(1), 
with respect to a qualified IDR item or service for 
which a determination is made under paragraph 
(5)(A) or with respect to an item or service for which 
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