Exploring Critical Business and Legal Issues across the Healthcare and Life Sciences Industries
Exploring Critical Business and Legal Issues across the Healthcare and Life Sciences Industries

HHS, DOL and Treasury Issue a Proposed Rule Increasing Federal IDR Fees

By , and on October 3, 2023

On September 20, 2023, the US Departments of Health and Human Services (HHS), Labor (DOL) and the Treasury (collectively, the departments) issued a proposed rule related to the No Surprises Act’s (NSA’s) federal independent dispute resolution (IDR) process. The proposed rule would amend existing regulations to provide that the two fees associated with the IDR process—the administrative fee amount charged by the departments, and the ranges for the IDR entity fees for single and batched determinations—be established by the departments through notice and comment rulemaking. The proposed rule outlines the methodology for calculating the fees and proposes the fees/fee ranges for disputes initiated on or after January 1, 2024. The proposal comes in response to a court order in the recent Texas Medical Association (TMA IV) case, which requires the departments to establish such fees through formal rulemaking.



The NSA’s nonrefundable IDR administrative fee is paid by both parties to cover the cost of their participation in the IDR process. For 2022, the administrative fee was $50 per party. The fee was expected to remain the same for 2023. However, in December 2022, the departments issued revised guidance increasing the fee from $50 to $350 for 2023. Plaintiffs in TMA IV challenged the increase as being unlawfully issued via guidance. The US District Court for the Eastern District of Texas agreed and vacated the portion of the guidance that increased the fee.

In light of the court’s order, the departments are now proposing to increase the fee through rulemaking to $150 per party for 2024. The departments propose to retain the flexibility to update this amount more or less frequently than annually. The proposal would establish the administrative amount by projecting the departments’ likely expenditures of conducting the IDR process and dividing this amount by the projected number of administrative fees to be paid, which is based on the total volume of disputes that the departments project will be closed (approximately 225,000 disputes annually). The departments also estimate the total cost of carrying out IDR to be around $70 million, which includes not only maintaining the IDR portal and certifying IDR entities, but also “[c]onducting program integrity activities, such as [Qualifying Payment Amount (QPA)] audits and IDR decision audits” and “[i]nvestigating relevant complaints[.]” The Center for Consumer Information and Insurance Oversight (CCIIO) has begun investigating complaints regarding QPA calculations and amounts owed from arbitration; however, the results of these audits and investigations have not been publicly disclosed.


The departments are also proposing to increase the fixed IDR entity fees for single and batched determinations as outlined in the table below. As part of the certification process, IDR entities must establish and notify the departments of the fixed-fee amounts they intend to charge for single and batched determinations. The amounts established must fall within the fee ranges set by the departments unless an IDR entity receives approval to charge an amount outside the range. The party whose offer is not selected is ultimately responsible for paying the fixed-fee amount. IDR entities’ current fees for single and batched determinations are available here.

For 2024, the departments propose to increase the limit for the single determination fee range by 20% and for batched determinations by 25%. When the number of line items in a batched dispute exceeds 25, the base amount may increase consistent with a tiered fee structure.


Calendar Year Administrative Fee Single Determinations Batched Determinations
2022 $50 $200-500 $268-670
2023 $50 $200-700 $268-938
Revised 2023 Amounts (vacated by TMA IV) $350 $200-700 $268-938
Proposed for 2024 $150 $200-840 $268-1,173


The departments state that they intend to propose additional IDR process policies in future rulemakings, including changing the timeframe for paying the administrative fee, reducing the fee for disputes that involve low-dollar claims, and codifying the consequences for failing to pay the administrative fee. The departments are soliciting comments on whether the administrative fee is prohibitive for disputes involving low-dollar items, whether an inflationary adjustment should be applied in future years, and more.

Comments on the proposed rule are due by October 26, 2023. Please contact your McDermott relationship partner with questions or for assistance. Learn more on this topic from McDermott+Consulting’s recent Regs & Eggs blog post.

Jamie Gelfman
Jamie Gelfman is board certified in health law by the Florida Bar Board of Legal Specialization and Education and is certified in healthcare compliance (CHC) by the Society of Corporate Compliance and the Health Care Compliance Association. Jamie works with healthcare clients on the full scope of legal issues that shape their business strategies. She is deeply experienced in regulatory, compliance, reimbursement and licensure matters, with particular experience in the administration of Medicare and Medicaid programs, fraud and abuse, privacy and security, and scope of practice issues. With more than a decade of healthcare legal experience based in Florida, Jamie is a valuable partner for healthcare companies doing business in or working to expand operations in the state.

Drew McCormick
Drew Elizabeth McCormick maintains a general health industry and regulatory practice. Drew advises healthcare clients on a wide variety of healthcare regulatory issues, including Medicare and Medicaid regulations, the Federal Anti-Kickback Statute, Ethics in Patient Referral Law, False Claims Act and Health Insurance Portability and Accountability Act (HIPAA), as well as state fraud and abuse laws, privacy laws, licensure regulation, research regulation, and healthcare compliance matters. Drew also has experience counseling clients who are undergoing government audits and investigations.

Emily Curran
Emily R. Curran focuses her practice on healthcare regulatory and compliance issues in the managed care space. She counsels both for-profit and non-profit healthcare insurance companies on state and federal policy issues and advises clients on reimbursement issues that come into play when participating in government healthcare programs. Learn more about Emily's practice:




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