# Bulletin No. 2023–47

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URL: https://www.frixlaw.com/law-library/documents/agency%3Airs%3A86f90c630ecdd2ea

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

HIGHLIGHTS
OF THIS ISSUE




Bulletin No. 2023–47
November 20, 2023

These synopses are intended only as aids to the reader in
identifying the subject matter covered. They may not be
relied upon as authoritative interpretations.

ADMINISTRATIVE
Announcement 2023-32, page 1258.

The Office of Professional Responsibility (OPR) announces
recent disciplinary sanctions involving attorneys, certified
public accountants, enrolled agents, enrolled actuaries,
enrolled retirement plan agents, and appraisers. These individuals are subject to the regulations governing practice
before the Internal Revenue Service (IRS), which are set out in
Title 31, Code of Federal Regulations, Part 10, and which are
published in pamphlet form as Treasury Department Circular
No. 230. The regulations prescribe the duties and restrictions relating to such practice and prescribe the disciplinary
sanctions for violating the regulations.

EMPLOYEE PLANS
Notice 2023-75, page 1256.

Section 415 of the Internal Revenue Code (the Code) provides for dollar limitations on benefits and contributions
under qualified retirement plans. Section 415(d) requires
that the Secretary of the Treasury annually adjust these
limits for cost of living increases. Other limitations applicable to deferred compensation plans are also affected
by these adjustments under § 415. Under § 415(d), the
adjustments are to be made under adjustment procedures
similar to those used to adjust benefit amounts under
§ 215(i)(2)(A) of the Social Security Act.

EXEMPT ORGANIZATIONS
Announcement 2023-33, page 1261.

Revocation of IRC 501(c)(3) Organizations for failure to meet
the code section requirements. Contributions made to the

Finding Lists begin on page ii.

organizations by individual donors are no longer deductible
under IRC 170(b)(1)(A).

EXCISE TAX
REG-115762-23, page 1262.

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.

REG-120727-21, page 1285.

This document extends the comment period for the proposed
rules entitled “Requirements Related to the Mental Health
Parity and Addiction Equity Act” that were published in the
August 3, 2023, issue of the Federal Register. The comment
period for the proposed rules, which had been scheduled to
close on October 2, 2023, is extended 15 days to October
17, 2023.

The IRS Mission
Provide America’s taxpayers top-quality service by helping
them understand and meet their tax responsibilities and
enforce the law with integrity and fairness to all.

Introduction
The Internal Revenue Bulletin is the authoritative instrument
of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service
and for publishing Treasury Decisions, Executive Orders, Tax
Conventions, legislation, court decisions, and other items of
general interest. It is published weekly.
It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform application
of the tax laws, including all rulings that supersede, revoke,
modify, or amend any of those previously published in the
Bulletin. All published rulings apply retroactively unless otherwise indicated. Procedures relating solely to matters of internal management are not published; however, statements of
internal practices and procedures that affect the rights and
duties of taxpayers are published.
Revenue rulings represent the conclusions of the Service
on the application of the law to the pivotal facts stated in
the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices,
identifying details and information of a confidential nature are
deleted to prevent unwarranted invasions of privacy and to
comply with statutory requirements.
Rulings and procedures reported in the Bulletin do not have the
force and effect of Treasury Department Regulations, but they
may be used as precedents. Unpublished rulings will not be
relied on, used, or cited as precedents by Service personnel in
the disposition of other cases. In applying published rulings and
procedures, the effect of subsequent legislation, regulations,
court decisions, rulings, and procedures must be considered,
and Service personnel and others concerned are cautioned

against reaching the same conclusions in other cases unless
the facts and circumstances are substantially the same.
The Bulletin is divided into four parts as follows:
Part I.—1986 Code.
This part includes rulings and decisions based on provisions
of the Internal Revenue Code of 1986.
Part II.—Treaties and Tax Legislation.
This part is divided into two subparts as follows: Subpart A,
Tax Conventions and Other Related Items, and Subpart B,
Legislation and Related Committee Reports.
Part III.—Administrative, Procedural, and Miscellaneous.
To the extent practicable, pertinent cross references to these
subjects are contained in the other Parts and Subparts. Also
included in this part are Bank Secrecy Act Administrative
Rulings. Bank Secrecy Act Administrative Rulings are issued
by the Department of the Treasury’s Office of the Assistant
Secretary (Enforcement).
Part IV.—Items of General Interest.
This part includes notices of proposed rulemakings, disbarment and suspension lists, and announcements.
The last Bulletin for each month includes a cumulative index
for the matters published during the preceding months. These
monthly indexes are cumulated on a semiannual basis, and are
published in the last Bulletin of each semiannual period.

The contents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate.

November 20, 2023 

Bulletin No. 2023–47

Part III
2024 Limitations Adjusted
as Provided in Section
415(d), etc.
Notice 2023-75
Section 415 of the Internal Revenue
Code (“Code”) provides for dollar limitations on benefits and contributions under
qualified retirement plans. Section 415(d)
requires that the Secretary of the Treasury
annually adjust these limits for cost-of-living increases. Other limitations applicable
to deferred compensation plans are also
affected by these adjustments under section 415. Under section 415(d), the adjustments are to be made under adjustment
procedures similar to those used to adjust
benefit amounts under section 215(i)(2)
(A) of the Social Security Act.
Cost-of-Living Adjusted Limits for
2024
Effective January 1, 2024, the limitation on the annual benefit under a defined
benefit plan under section 415(b)(1)(A) of
the Code is increased from $265,000 to
$275,000.
For a participant who separated from
service before January 1, 2024, the participant’s limitation under a defined benefit plan under section 415(b)(1)(B) is
computed by multiplying the participant’s
compensation limitation, as adjusted
through 2023, by 1.0351.
The limitation for defined contribution plans under section 415(c)(1)(A) is
increased in 2024 from $66,000 to $69,000.
The Code provides that various other
dollar amounts are to be adjusted at the
same time and in the same manner as the
dollar limitation of section 415(b)(1)(A).
After taking into account the applicable
rounding rules, the amounts for 2024 are
as follows:
The limitation under section 402(g)
(1) on the exclusion for elective deferrals described in section 402(g)(3) is
increased from $22,500 to $23,000.
1

The annual compensation limit under
sections 401(a)(17), 404(l), 408(k)(3)
(C), and 408(k)(6)(D)(ii) is increased
from $330,000 to $345,000.
The dollar limitation under section
416(i)(1)(A)(i) concerning the definition of “key employee” in a top-heavy
plan is increased from $215,000 to
$220,000.
The dollar amount under section 409(o)
(1)(C)(ii) for determining the maximum account balance in an employee
stock ownership plan subject to a
5‑year distribution period is increased
from $1,330,000 to $1,380,000, while
the dollar amount used to determine
the lengthening of the 5-year distribution period is increased from $265,000
to $275,000.
The limitation used in the definition of
“highly compensated employee” under
section 414(q)(1)(B) is increased from
$150,000 to $155,000.
The dollar limitation under section
414(v)(2)(B)(i) for catch-up contributions to an applicable employer plan
other than a plan described in section 401(k)(11) or section 408(p) for
individuals aged 50 or over remains
$7,500. The dollar limitation under section 414(v)(2)(B)(ii) for catch-up contributions to an applicable employer
plan described in section 401(k)(11) or
section 408(p) for individuals aged 50
or over remains $3,500.
The annual compensation limitation
under section 401(a)(17) for eligible
participants in certain governmental
plans that, under the plan as in effect
on July 1, 1993, allowed cost-of-living adjustments to the compensation
limitation under the plan under section
401(a)(17) to be taken into account, is
increased from $490,000 to $505,000.
The compensation amount under section 408(k)(2)(C) regarding simplified
employee pensions remains $750.
The limitation under section 408(p)
(2)(E) regarding SIMPLE retirement

accounts is increased from $15,500 to
$16,000.
The limitation on the aggregate amount
of length of service awards accruing
with respect to any year of service
for any bona fide volunteer under
section 457(e)(11)(B)(ii) concerning
deferred compensation plans of state
and local governments and tax-exempt
organizations is increased from $7,000
to $7,500.
The limitation on deferrals under section 457(e)(15) concerning deferred
compensation plans of state and local
governments and tax-exempt organizations is increased from $22,500 to
$23,000.
The limitation under section 664(g)
(7) concerning the qualified gratuitous
transfer of qualified employer securities to an employee stock ownership
plan remains $60,000.
The compensation amount under §
1.61-21(f)(5)(i) of the Income Tax
Regulations concerning the definition
of “control employee” for fringe benefit valuation purposes is increased
from $130,000 to $135,000. The compensation amount under § 1.61-21(f)
(5)(iii) is increased from $265,000 to
$275,000.
The dollar limitation on premiums paid
for a qualifying longevity annuity contract under § 1.401(a)(9)-6, A-17(b)(2)
(i), which was increased to $200,000
pursuant to section 202 of the SECURE
2.0 Act of 2022 (“SECURE 2.0 Act”1)
with respect to contracts purchased or
received in an exchange on or after
December 29, 2022 remains $200,000.
The Code provides that the
$1,000,000,000 threshold used to determine whether a multiemployer plan is a
systemically important plan under section 432(e)(9)(H)(v)(III)(aa) of the Code
is adjusted using the cost-of-living adjustment provided under section 432(e)(9)(H)
(v)(III)(bb). After taking the applicable
rounding rule into account, the threshold

Division T of the Consolidated Appropriations Act, 2023, Pub. L. 117-328, 136 Stat. 4459 (2022).

November 20, 2023

1256

Bulletin No. 2023–47

used to determine whether a multiemployer plan is a systemically important
plan under section 432(e)(9)(H)(v)(III)
(aa) is increased from $1,256,000,000 to
$1,369,000,000.
The Code also provides that several
retirement-related amounts are to be
adjusted using the cost-of-living adjustment under section 1(f)(3). After taking
the applicable rounding rules into account,
the amounts for 2024 are as follows:
The adjusted gross income limitation
under section 25B(b)(1)(A) for determining the retirement savings contributions credit for married taxpayers
filing a joint return is increased from
$43,500 to $46,000; the limitation
under section 25B(b)(1)(B) is increased
from $47,500 to $50,000; and the limitation under sections 25B(b)(1)(C)
and 25B(b)(1)(D) is increased from
$73,000 to $76,500.
The adjusted gross income limitation
under section 25B(b)(1)(A) for determining the retirement savings contributions credit for taxpayers filing as
head of household is increased from
$32,625 to $34,500; the limitation
under section 25B(b)(1)(B) is increased
from $35,625 to $37,500; and the limitation under sections 25B(b)(1)(C)
and 25B(b)(1)(D) is increased from
$54,750 to $57,375.
The adjusted gross income limitation
under section 25B(b)(1)(A) for determining the retirement savings contributions credit for all other taxpayers
is increased from $21,750 to $23,000;
the limitation under section 25B(b)
(1)(B) is increased from $23,750 to
$25,000; and the limitation under sections 25B(b)(1)(C) and 25B(b)(1)(D) is
increased from $36,500 to $38,250.
The deductible amount under section 219(b)(5)(A), which limits the
amount of an individual’s deductible
qualified retirement contributions for a
taxable year, is increased from $6,500
to $7,000. The increase in the deductible amount pursuant to section 219(b)
(5)(B)(ii) for individuals who have
attained age 50 before the close of the
taxable year remains $1,000.

Bulletin No. 2023–47

The applicable dollar amount under
section 219(g)(3)(B)(i) for determining
the deductible amount of an IRA contribution for taxpayers who are active
participants filing a joint return or as a
qualifying widow(er) is increased from
$116,000 to $123,000. The applicable
dollar amount under section 219(g)(3)
(B)(ii) for all other taxpayers who are
active participants (other than married
taxpayers filing separate returns) is
increased from $73,000 to $77,000. If
an individual or the individual’s spouse
is an active participant, the applicable
dollar amount under section 219(g)
(3)(B)(iii) for a married individual filing a separate return is not subject to
an annual cost-of-living adjustment
and remains $0. The applicable dollar
amount under section 219(g)(7)(A) for
a taxpayer who is not an active participant but whose spouse is an active participant is increased from $218,000 to
$230,000.
Accordingly, under section 219(g)(2)
(A), the deduction for taxpayers making contributions to a traditional IRA
is phased out for single individuals and
heads of household who are active participants in a qualified plan (or another
retirement plan specified in section
219(g)(5)) and have adjusted gross
incomes (as defined in section 219(g)
(3)(A)) between $77,000 and $87,000,
increased from between $73,000 and
$83,000. For married couples filing
jointly, if the spouse who makes the IRA
contribution is an active participant,
the income phase‑out range is between
$123,000 and $143,000, increased from
between $116,000 and $136,000. For
an IRA contributor who is not an active
participant and is married to someone
who is an active participant, the deduction is phased out if the couple’s income
is between $230,000 and $240,000,
increased from between $218,000 and
$228,000. For a married individual filing a separate return who is an active
participant, the phase-out range is not
subject to an annual cost‑of‑living
adjustment and remains $0 to $10,000.
The adjusted gross income limitation
under section 408A(c)(3)(B)(ii)(I)

1257

for determining the maximum Roth
IRA contribution for married taxpayers filing a joint return or for taxpayers filing as a qualifying widow(er) is
increased from $218,000 to $230,000.
The adjusted gross income limitation
under section 408A(c)(3)(B)(ii)(II) for
all other taxpayers (other than married
taxpayers filing separate returns) is
increased from $138,000 to $146,000.
The applicable dollar amount under
section 408A(c)(3)(B)(ii)(III) for a
married individual filing a separate
return is not subject to an annual costof-living adjustment and remains $0.
Accordingly, under section 408A(c)(3)
(A), the adjusted gross income phaseout range for taxpayers making contributions to a Roth IRA is between
$230,000 and $240,000 for married
couples filing jointly, increased from
between $218,000 and $228,000. For
singles and heads of household, the
income phase-out range is between
$146,000 and $161,000, increased
from between $138,000 and $153,000.
For a married individual filing a separate return, the phase-out range is
not subject to an annual cost-of-living
adjustment and remains between $0
and $10,000.
The aggregate amount of qualified
charitable distributions that are not
includible in gross income under section 408(d)(8)(A) is increased from
$100,000 to $105,000. The amount of
qualified charitable distributions made
directly to a split-interest entity that are
not includible in gross income under
section 408(d)(8)(F) pursuant to a onetime election is increased from $50,000
to $53,000.
Drafting Information
The principal author of this notice is
Tom Morgan of the Office of Associate
Chief Counsel (Employee Benefits,
Exempt Organizations, and Employment
Taxes). However, other personnel from
the IRS participated in the development
of this guidance. For further information
regarding this notice, contact Mr. Morgan
at (202) 317‑6700 (not a toll-free number).

November 20, 2023

Part IV
Announcement of
Disciplinary Sanctions
From the Office of
Professional Responsibility
Announcement 2023-32
The
Office
of
Professional
Responsibility (OPR) announces recent
disciplinary sanctions involving attorneys, certified public accountants,
enrolled agents, enrolled actuaries,
enrolled retirement plan agents, appraisers, and unenrolled/unlicensed return
preparers (individuals who are not
enrolled to practice and are not licensed
as attorneys or certified public accountants). Licensed or enrolled practitioners
are subject to the regulations governing practice before the Internal Revenue
Service (IRS), which are set out in Title
31, Code of Federal Regulations, Subtitle
A, Part 10, and which are released as
Treasury Department Circular No. 230.
The regulations prescribe the duties and
restrictions relating to such practice and
prescribe the disciplinary sanctions for
violating the regulations. Unenrolled/
unlicensed return preparers are subject
to Revenue Procedure 81-38 and superseding guidance in Revenue Procedure
2014-42, which govern a preparer’s eligibility to represent taxpayers before the
IRS in examinations of tax returns the
preparer both prepared for the taxpayer
and signed as the preparer. Additionally,
unenrolled/unlicensed return preparers
who voluntarily participate in the Annual
Filing Season Program under Revenue
Procedure 2014-42 agree to be subject to
the duties and restrictions in Circular 230,
including the restrictions on incompetent
or disreputable conduct.
The disciplinary sanctions to be
imposed for violation of the applicable
standards are:
Disbarred from practice before the
IRS—An individual who is disbarred
is not eligible to practice before the IRS
as defined at 31 C.F.R. § 10.2(a)(4) for a
minimum period of five (5) years.

November 20, 2023

Suspended from practice before the
IRS—An individual who is suspended is
not eligible to practice before the IRS as
defined at 31 C.F.R. § 10.2(a)(4) during
the term of the suspension.
Censured in practice before the
IRS—Censure is a public reprimand.
Unlike disbarment or suspension, censure
does not affect an individual’s eligibility
to practice before the IRS, but OPR may
subject the individual’s future practice
rights to conditions designed to promote
high standards of conduct.
Monetary penalty—A monetary penalty may be imposed on an individual who
engages in conduct subject to sanction,
or on an employer, firm, or entity if the
individual was acting on its behalf and it
knew, or reasonably should have known,
of the individual’s conduct.
Disqualification of appraiser—An
appraiser who is disqualified is barred
from presenting evidence or testimony in
any administrative proceeding before the
Department of the Treasury or the IRS.
Ineligible for limited practice—An
unenrolled/unlicensed return preparer
who fails to comply with the requirements
in Revenue Procedure 81-38 or to comply
with Circular 230 as required by Revenue
Procedure 2014-42 may be determined
ineligible to engage in limited practice as
a representative of any taxpayer.
Under the regulations, individuals
subject to Circular 230 may not assist, or
accept assistance from, individuals who
are suspended or disbarred with respect
to matters constituting practice (i.e., representation) before the IRS, and they may
not aid or abet suspended or disbarred
individuals to practice before the IRS.
Disciplinary sanctions are described in
these terms:
Disbarred by decision, Suspended
by decision, Censured by decision,
Monetary penalty imposed by decision,
and Disqualified after hearing—An
administrative law judge (ALJ) issued a
decision imposing one of these sanctions
after the ALJ either (1) granted the government’s summary judgment motion or
(2) conducted an evidentiary hearing upon
OPR’s complaint alleging violation of the

1258

regulations. After 30 days from the issuance of the decision, in the absence of an
appeal, the ALJ’s decision becomes the
final agency decision.
Disbarred by default decision,
Suspended by default decision,
Censured by default decision, Monetary
penalty imposed by default decision,
and Disqualified by default decision—
An ALJ, after finding that no answer to
OPR’s complaint was filed, granted OPR’s
motion for a default judgment and issued a
decision imposing one of these sanctions.
Disbarment by decision on appeal,
Suspended by decision on appeal,
Censured by decision on appeal,
Monetary penalty imposed by decision
on appeal, and Disqualified by decision
on appeal—The decision of the ALJ was
appealed to the agency appeal authority,
acting as the delegate of the Secretary
of the Treasury, and the appeal authority
issued a decision imposing one of these
sanctions.
Disbarred by consent, Suspended
by consent, Censured by consent,
Monetary penalty imposed by consent,
and Disqualified by consent—In lieu of
a disciplinary proceeding being instituted
or continued, an individual offered a consent to one of these sanctions and OPR
accepted the offer. Typically, an offer of
consent will provide for: suspension for
an indefinite term; conditions that the
individual must observe during the suspension; and the individual’s opportunity, after a stated number of months, to
file with OPR a petition for reinstatement
affirming compliance with the terms of
the consent and affirming current fitness
and eligibility to practice (i.e., an active
professional license or active enrollment
status, with no intervening violations of
the regulations).
Suspended indefinitely by decision in
expedited proceeding, Suspended indefinitely by default decision in expedited
proceeding, Suspended by consent in
expedited proceeding—OPR instituted
an expedited proceeding for suspension
(based on certain limited grounds, including loss of a professional license for cause,
and criminal convictions).

Bulletin No. 2023–47

Determined ineligible for limited
practice---There has been a final determination that an unenrolled/unlicensed
return preparer is not eligible for limited
representation of any taxpayer because the
preparer violated standards of conduct or
failed to comply with any of the requirements to act as a representative.
A practitioner who has been disbarred
or suspended under 31 C.F.R. § 10.60, or
suspended under § 10.82, or a disqualified
appraiser may petition for reinstatement
before the IRS after the expiration of 5
years following such disbarment, suspension, or disqualification (or immediately
following the expiration of the suspension
or disqualification period if shorter than 5
years). Reinstatement will not be granted
unless the IRS is satisfied that the petitioner is not likely to engage thereafter in
conduct contrary to Circular 230, and that
granting such reinstatement would not be
contrary to the public interest.

Reinstatement decisions are published
at the individual’s request, and described
in these terms:
Reinstated to practice before the
IRS---The individual’s petition for
reinstatement has been granted. The
agent, and eligible to practice before the
IRS, or in the case of an appraiser, the
individual is no longer disqualified.
Reinstated to engage in limited
practice before the IRS---The individual’s petition for reinstatement has been
granted. The individual is an unenrolled/
unlicensed return preparer and eligible to
engage in limited practice before the IRS,
subject to requirements the IRS has prescribed for limited practice by tax return
preparers.
OPR has authority to disclose the
grounds for disciplinary sanctions in these
situations: (1) an ALJ or the Secretary’s
delegate on appeal has issued a final
decision; (2) the individual has settled a

disciplinary case by signing OPR’s “consent to sanction” agreement admitting to
one or more violations of the regulations
and consenting to the disclosure of the
admitted violations (for example, failure
to file Federal income tax returns, lack of
due diligence, conflict of interest, etc.); (3)
OPR has issued a decision in an expedited
proceeding for indefinite suspension; or
(4) OPR has made a final determination
(including any decision on appeal) that an
unenrolled/unlicensed return preparer is
ineligible to represent any taxpayer before
the IRS.
Announcements of disciplinary sanctions appear in the Internal Revenue
Bulletin at the earliest practicable date.
The sanctions announced below are alphabetized first by state and second by the last
names of the sanctioned individuals.

City & State

Name

Professional
Designation

Disciplinary Sanction

Effective Date(s)

Alabama
Birmingham

Stewart, Jr., Otis J.

Attorney/CPA

Suspended by ALJ Decision

Indefinite from
May 21, 2023

California
Buena Park

Pak, James J.

Attorney/CPA

Colorado
Highlands Ranch

Parsons, Robert L.

CPA

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 25, 2023

Georgia
Covington

Murray, Walter V.

CPA

Suspended by decision in
expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 25, 2023

Kentucky
Louisville

Brauckmann, John A.

CPA

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 25, 2023

Maine
Carabaset Valley

Dardis, Edward G.

Attorney

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 11, 2023

Bulletin No. 2023–47

Reinstated to practice
before the IRS, effective
09/28/2023

1259

November 20, 2023

City & State

Name

Professional
Designation

Disciplinary Sanction

Effective Date(s)

Minneapolis
Saint Paul

Shah, Ronak R.

CPA

Suspended by decision in
expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
September 28, 2023

Mississippi
Jackson

Seawright, John D.

Attorney

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
September 28, 2023

New York
Thornwood

Vigna, Anthony P.

Attorney

Indefinite from
July 25, 2023

White Plains

Savignano, John J.

CPA

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)
Suspended by consent for
admitted violations of
31 C.F.R § 10.51(a)(2)

Sharper, Sr.,
Anthony M.

CPA

Indefinite from
July 25, 2023

Garner, Jonathan B.

Attorney

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)
Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

North Carolina
Charlotte

Hamlet

Indefinite from
July 06, 2023

Indefinite from
September 28, 2023

South Carolina
Sharper, Sr.,
Anthony M., see North
Carolina
Tennessee
Knoxville

Gee, Jr., Edgar H.

CPA

Texas
Georgetown

Corn, Pamela L.

CPA

Heckathorn, Milton Ben
(aka Ben Heckathorn)

Attorney/CPA

Canfield, James L.

Enrolled Agent

Red Oak

Wisconsin
Wisconsin Rapids

November 20, 2023

Reinstated to practice
before the IRS, effective
July 25, 2023
Suspended by decision in
expedited proceeding under
31 C.F.R. § 10.82(b)
Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 25, 2023

Suspended by default decision
in expedited proceeding under
31 C.F.R. § 10.82(b)

Indefinite from
July 25, 2023

1260

Indefinite from
September 28, 2023

Bulletin No. 2023–47

Deletions From Cumulative
List of Organizations,
Contributions to Which are
Deductible Under Section
170 of the Code
Announcement 2023-33
The Internal Revenue Service has
revoked its determination that the organizations listed below qualify as organizations described in sections 501(c)(3) and
170(c)(2) of the Internal Revenue Code of
1986.

Generally, the IRS will not disallow
deductions for contributions made to a
listed organization on or before the date
of announcement in the Internal Revenue
Bulletin that an organization no longer
qualifies. However, the IRS is not precluded from disallowing a deduction for
any contributions made after an organization ceases to qualify under section 170(c)
(2) if the organization has not timely filed
a suit for declaratory judgment under section 7428 and if the contributor (1) had
knowledge of the revocation of the ruling
or determination letter, (2) was aware that
such revocation was imminent, or (3) was
in part responsible for or was aware of the
activities or omissions of the organization
that brought about this revocation.

NAME OF ORGANIZATION
GUATEMALA INSTITUTE FOR BIBICAL EVENGELISM INC.
CAMBRIDGEPORT TEACHER ORGANIZATION INC
HARMON COUNTY HEALTHCARE AUTHORITY
DOGS DAYS RANCH AND RESCUE

Bulletin No. 2023–47

1261

If on the other hand a suit for declaratory judgment has been timely filed,
contributions from individuals and organizations described in section 170(c)(2)
that are otherwise allowable will continue
to be deductible. Protection under section 7428(c) would begin on November
20, 2023 and would end on the date the
court first determines the organization is
not described in section 170(c)(2) as more
particularly set for in section 7428(c)(1).
For individual contributors, the maximum
deduction protected is $1,000, with a husband and wife treated as one contributor.
This benefit is not extended to any individual, in whole or in part, for the acts or
omissions of the organization that were
the basis for revocation.

Effective Date of
Revocation
01/01/2020
07/01/2020
03/01/2019
01/01/2021

LOCATION
BELTON, TX
CAMBRIDGE, MA
HOLLIS, OK
WINONA, TX

November 20, 2023

Notice of Proposed
Rulemaking

Federal Independent
Dispute Resolution (IDR)
Process Administrative Fee
and Certified IDR Entity Fee
Ranges
REG 115762-23
DEPARTMENT OF THE
TREASURY
Internal Revenue Service
26 CFR Part 54
DEPARTMENT OF LABOR
Employee Benefits Security
Administration
29 CFR Part 2590
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
Centers for Medicare &
Medicaid Services
45 CFR Part 149
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 rules.
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

November 20, 2023

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 CMS9890-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.

1262

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:
 enters for Medicare & Medicaid
C
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

Bulletin No. 2023–47

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 out-of-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 Act11
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 E15 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 rules16 and October
2021 interim final rules17) and final rules
(August 2022 final rules18) 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

Pub. L. 116-260 (Dec. 27, 2020).
26 U.S.C. 9816, et seq.
3
29 U.S.C. 1185e, et seq.
4
42 U.S.C. 300gg–111, et seq.
5
Section 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.
1
2

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November 20, 2023

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 facilities22 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-of-network rate for these services
if a specified State law as defined in 26
CFR 54.9816-3T, 29 CFR 2590.716-3, and
45 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, non-emergency services
furnished by nonparticipating providers
for patient visits to certain types of participating health care facilities27 (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

42 U.S.C. 300gg–111, et seq. and 42 U.S.C. 300gg–112, et seq.
References 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.
23
The 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).
27
A health care facility, in the context of non-emergency 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).
21
22

November 20, 2023

1264

Bulletin No. 2023–47

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 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
pre-eligibility 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 rules47 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 order48 that
vacated certain portions of the July 2021
interim final rules and associated regulatory provisions49 and portions of guidance

26 U.S.C. 9816(c)(8)(B).
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).
42
Centers 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/Regulations-and-Guidance/Downloads/Technical-Guidance-CY2022-Fee-Guidance-Federal-Independent-Dispute-Resolution-Process-NSA.pdf.
43
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-dispute-resolution-process-nsa.pdf.
44
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/regulations-and-guidance/downloads/amended-cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
45
Centers 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-eligibility-support-guidance-11212022-final-updated.pdf.
46
Tex. 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).
48
See 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).
49
Specifically, 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).
38
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November 20, 2023

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 order53 that vacated the
portion of the December 2022 guidance54
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 guidance56 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 IDR-related 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

Specifically, 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).
51
Tex. 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).
52
See 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.
53
See 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).
54
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/regulations-and-guidance/downloads/amended-cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
55
Specifically, 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 DiagnosisRelated Group (DRG) codes with modifiers, if applicable.
56
Centers for Medicare & Medicaid Services (August 11, 2023). Federal Independent Dispute Resolution (IDR) Process Administrative Fee FAQs. https://www.cms.gov/cciio/resources/
regulations-and-guidance/downloads/no-surprises-act-independent-dispute-resolution-administrative-fee-frequently-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).
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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, 202366
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 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 non-refundable 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

6:23-cv-00059-JDK (E.D. Tex. Jan. 30, 2023).
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/regulations-and-guidance/downloads/amended-cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
67
See 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.
68
Under 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-idr-guidance-idr-entities-march-2023.pdf.
69
For 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.
65
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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 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

Because 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).
71
Centers 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-eligibility-support-guidance-11212022-final-updated.pdf.
72
As 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.
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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 2590.7168(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 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

Beginning 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/regulations-and-guidance/downloads/cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
74
Beginning 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/regulations-and-guidance/downloads/cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
75
This 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-dispute-resolution-process-nsa.pdf.
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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 x 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 2590.7168(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

See 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/regulations-and-guidance/downloads/amended-cy2023-fee-guidance-federal-independent-dispute-resolution-process-nsa.pdf.
77
Between April 15, 2022 and March 31, 2023, disputing parties initiated 334,828 disputes through the Federal IDR portal. During that time, non-initiating 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-august-2022.pdf and Centers for Medicare & Medicaid Services (April 27, 2023). Federal Independent Dispute Resolution Status Update. https://www.cms.gov/files/document/federal-idr-processstatus-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-guidance-documents/Technical-Assistance-IDR-Entities-August-2022.pdf.
76

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Bulletin No. 2023–47

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
2799A–1(c)(3)(A) of the PHS Act81 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

26 U.S.C. 9816(c)(3)(A).
26 U.S.C. 9816(c)(3)(A).
81
42 U.S.C. 300gg–111(c)(3)(A).
82
See 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.
83
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-guidance-documents/Technical-Assistance-IDR-Entities-August-2022.pdf.
84
Id.
85
45 CFR 149.510(e)(2)(vii).
79
80

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November 20, 2023

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 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

November 20, 2023

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,

1272

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 2590.7168(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

Bulletin No. 2023–47

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).

Bulletin No. 2023–47

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

1273

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
non-quantified impacts. The effects in
Table 1 reflect non-quantified impacts
and estimated direct monetary costs
resulting from the provisions of these
proposed rules.

November 20, 2023

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:
Annualized Monetized
($/Year)

Estimate
$0.09 million
$0.08 million

Year Dollar
2023
2023

Discount Rate
7 percent
3 percent

Period Covered
2023-2027
2023-2027

Quantified:
● Costs to interested parties of $438,543 to review and interpret these rules in 2023.
Transfers:
Estimate
Year Dollar
Discount Rate
Period Covered
Annualized Monetized
$41.69 million
2023
7 percent
2023-2027
($/year)
$42.55 million
2023
3 percent
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.

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

November 20, 2023

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

1274

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

Bulletin No. 2023–47

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 x
2 parties per dispute x $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
x 2 parties per dispute x $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 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 x 0.70
and 135,000 x 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

As 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-and-guidance/downloads/
no-surprises-act-independent-dispute-resolution-administrative-fee-frequently-asked-questions.pdf. Also see Cent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3A86f90c630ecdd2ea. Public record. Not legal advice.