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URL: https://www.frixlaw.com/law-library/documents/agency%3Airs%3Ae3eb1b620b602201

## Record

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

## Text

HIGHLIGHTS
OF THIS ISSUE




Bulletin No. 2024–5
January 29, 2024

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

EMPLOYEE PLANS

Notice 2024-18, page 625.

T.D. 9986, page 610.

This notice addresses the availability of administrative
exemptions from and waivers of the requirements to file
returns and other documents in electronic form. This notice
provides information about publications pertaining to failed
attempts to electronically file Forms 1120, 1120-S, and
1120-F using Internal Revenue Service (IRS) filing systems.
In addition, this notice obsoletes Notice 2010-13, 2010-4
I.R.B. 327 (January 25, 2010), Form 1120, Form 1120-F,
Form 1120S, Form 990, and Form 990-PF Electronic Filing
Waiver Request Procedures. This notice also modifies Notice
2023-60 as released on August 11, 2023, but not published
in the Internal Revenue Bulletin.

ADMINISTRATIVE, INCOME TAX
Notice 2024-19, page 627.

This notice provides relief from certain penalties imposed
solely for failure of a partnership with unrealized receivables
or inventory items to furnish Part IV of Form 8308, Report of a
Sale or Exchange of Certain Partnership Interests, by January
31, 2024, to the transferor and transferee in certain transfers
of partnership interests that occurred in calendar year 2023.

EXEMPT ORGANIZATIONS
Announcement 2024-6, page 635.

Revocation of IRC 501(c)(3) Organizations for failure to meet
the code section requirements. Contributions made to the
organizations by individual donors are no longer deductible
under IRC 170(b)(1)(A).

Finding Lists begin on page ii.

These regulations specify the methodology for constructing
the corporate bond yield curve that is used to derive the
interest rates used in calculating present value and making
other calculations under a defined benefit plan, as well as for
discounting unpaid losses and estimated salvage recoverable of insurance companies.

EXCISE TAX
T.D. 9985, page 573.

This document finalizes 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
final rules 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. The preamble to these final rules
also sets forth the methodology used to calculate the
administrative fee and the considerations used to develop
the certified IDR entity fee ranges. This document also
finalizes the amount of the administrative fee for disputes
initiated on or after the effective date of these rules.
Finally, this document finalizes the certified IDR entity fee
ranges for disputes initiated on or after the effective date
of these rules.

EMPLOYEE PLANS

tion Reduction Act of 2022. This notice requests comments
on this PIN requirement.

Notice 2024-16, page 622.

REG-121010-17, page 636.

This notice announces that Treasury and the IRS intend to
issue proposed regulations that will address certain basis
consequences of internal restructuring transactions in which
a U.S. corporation acquires stock of a controlled foreign corporation (“CFC”) from another CFC. In particular, the notice
announces rules under which basis provided under section
961(c) in stock of a second-tier CFC held by a first-tier CFC
will be transferred to a U.S. corporation that acquires the second-tier CFC from the first-tier CFC in a liquidation described
in section 332 or an asset reorganization described in section 368(a)(1).

This document contains proposed regulations that would provide guidance under section 166 regarding whether a debt
instrument is worthless for Federal income tax purposes.
The proposed regulations update the standard for determining when a debt instrument held by a regulated financial
company or a member of a regulated financial group will be
conclusively presumed to be worthless.

Rev. Proc. 2024-9, page 628.

Revenue Procedure 2024-9 provides procedures for obtaining automatic consent to change methods of accounting for
specified research or experimental expenditures under § 174
paid or incurred in taxable years beginning after December
31, 2021. Revenue Procedure 2024-9 also clarifies section
9 of Revenue Procedure 2023-24 to provide that section 5 of
Revenue Procedure 2000-50 is obsoleted for costs of developing computer software paid or incurred in any taxable year
beginning after December 31, 2021, and continues to apply
to costs of developing computer software paid or incurred
in any taxable year beginning on or before December 31,
2021.

INCOME TAX
Notice 2024-12, page 616.

Notice 2024-12 clarifies and modifies Notice 2023-63, which
provided interim guidance to address issues regarding specified research or experimental expenditures under § 174. Specifically, Notice 2024-12 clarifies and modifies Notice 202363 regarding (1) the treatment of costs paid or incurred by a
research provider for research performed under contract, (2)
the requirement that a taxpayer that chooses to rely on any
of the rules described in Notice 2023-63 must rely on all the
rules described in sections 3 through 9 of the notice, and (3)
the obsoletion of section 5 of Revenue Procedure 2000-50.

TAX CONVENTIONS
Announcement 2024-5, page 635.

The United States provided a diplomatic notification, dated
July 8, 2022, to the Government of the Republic of Hungary
of its termination of the United States-Hungary Tax Treaty. In
respect of tax withheld at source, the United States-Hungary
Tax Treaty ceases to have effect with respect to amounts
paid or credited on or after January 1, 2024. In respect of
other taxes, the United States-Hungary Tax Treaty ceases to
have effect with respect to taxable periods beginning on or
after January 1, 2024.

Notice 2024-13, page 618.

This notice announces that the Department of the Treasury and the Internal Revenue Service intend to propose
regulations to implement the product identification number
(PIN) requirement with respect to the energy efficient home
improvement credit under § 25C of the Internal Revenue
Code, as amended by § 13301 of Public Law 117-169, 136.
Stat. 1818 (August 16, 2022), commonly known as the Infla-

January 29, 2024

2

Bulletin No. 2024–5

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.

January 29, 2024 

Bulletin No. 2024–5

Part I
(26 CFR 54.9816-8 Independent dispute resolution
process; 26 CFR 54.9816-8T Independent dispute
resolution process (temporary))

T.D. 9985
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
45 CFR Part 149
Federal Independent
Dispute Resolution (IDR)
Process Administrative Fee
and Certified IDR Entity Fee
Ranges
AGENCY: Internal Revenue Service (IRS),
Department of the Treasury; Employee
Benefits Security Administration, Department of Labor; Centers for Medicare &
Medicaid Services, Department of Health
and Human Services (HHS).
ACTION: Final rules.
SUMMARY: This document finalizes
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
final rules 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. The preamble to these final rules also sets forth
the methodology used to calculate the
administrative fee and the considerations
used to develop the certified IDR entity
fee ranges. This document also finalizes
the amount of the administrative fee for
disputes initiated on or after the effective
date of these rules. Finally, this document finalizes the certified IDR entity fee
ranges for disputes initiated on or after
the effective date of these rules.
DATES: These final rules are effective on
[insert date 30 days after date of publication in the Federal Register].
FOR FURTHER INFORMATION
CONTACT: Shira B. McKinlay or William Fischer, Internal Revenue Service,
Department of the Treasury, 202-3175500; 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:
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,

Public Law 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.
1
2

Bulletin No. 2024–5

573

January 29, 2024

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, along with the
Office of Personnel Management (OPM),
have issued rules in 2021 and 2022 to
implement various provisions of the No
Surprises Act. More specifically relevant to this 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 the PHS Act.21 Those 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. Those 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 outof-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)

5
Section 102(d)(1) of the No Surprises Act amended the Federal Employees Health Benefits (FEHB) 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.
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.
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 and 26 U.S.C. 9817.
20
29 U.S.C. 1185e, et seq. and 29 U.S.C. 1185f, et seq.
21
42 U.S.C. 300gg–111, et seq. and 42 U.S.C. 300gg–112, et seq.
22
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 FEHB 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).

January 29, 2024

574

Bulletin No. 2024–5

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 capacity of the
Federal IDR process to efficiently handle
the volume of IDR initiations and payment determinations, and provide that the
Departments will review and update the
allowable fee ranges annually based on
these factors, the impact of inflation, and
other cost increases. Those rules also provide that on an annual basis, the certified
IDR entity may update its certified IDR
entity fees within the ranges set forth in
current guidance and seek approval from
the Departments to charge fixed certified
IDR entity fees beyond the upper or lower
limits for certified IDR entity fees.34
Additionally, pursuant to section
9816(c)(8) of the Code,35 section 716(c)
(8) of ERISA,36 and section 2799A-1(c)
(8) of the PHS Act,37 and under the October 2021 interim final rules, each party
must pay an administrative fee for participating in the Federal IDR process. The
administrative fee is established in guid-

ance 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 in
carrying 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 the Departments otherwise grant approval for the certified
IDR entity to charge a fee outside these
ranges. 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 usage of the
Federal IDR process was not sufficiently
reliable to support a change to either the

42 U.S.C. 300gg–111(c) and 42 U.S.C. 300gg–112(b).
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).
38
26 U.S.C. 9816(c)(8)(B).
39
29 U.S.C. 1185e(c)(8)(B).
40
42 U.S.C. 300gg–111(c)(8)(B).
41
26 CFR 54.9816-8T(d)(2)(ii), 29 CFR 2590.716-8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii).
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.
26
27

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January 29, 2024

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 amount. 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: Change in
Administrative Fee (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 provided in the October
2022 guidance.
C. Recent Litigation
On November 30, 2022, the Texas
Medical Association, Tyler Regional Hospital, and a Texas physician filed a lawsuit
(TMA III)46 against the Departments and
OPM, asserting that the July 2021 interim
final rules,47 including the regulations
governing how the qualifying payment
amount (QPA) should be calculated, and
certain related guidance documents con-

flicted with the statutory language. On
August 24, 2023, the U.S. District Court
for the Eastern District of 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 documents,50 including 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 guidance52 that
set the $350 per party administrative fee
amount for 2023 was unlawfully issued
without notice and comment rulemaking.53 On August 3, 2023, the District
Court issued a memorandum opinion and
order54 vacating the portion of the December 2022 guidance55 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 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 may be considered
jointly as part of a single IDR dispute.56
On August 11, 2023, the Departments

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
Complaint, Tex. Med. Ass’n v. U. S. Dep’t of Health and Human Servs., No. 6:22-cv-00450-JDK (E.D. Tex. Nov. 30, 2022) (ECF No. 1).
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, 2023 WL 5489028 (E.D. Tex. Aug. 24, 2023).
49
Specifically, the District Court vacated certain provisions of 26 CFR 54.9816-6T and 54.9817-1T, 29 CFR 2590.716-6 and 2590.717-1, and 45 CFR 149.130 and 149.140. The District Court
also vacated 5 CFR 890.114(a), insofar as it requires compliance with the vacated regulations and guidance.
50
Specifically, the 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
Complaint, Tex. Med. Ass’n. v. U. S. Dep’t of Health and Human Servs., No. 6:23-cv-00059-JDK (E.D. Tex. Jan. 30, 2023) (ECF No. 1).
52
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.
53
Complaint, Tex. Med. Ass’n. v. U. S. Dep’t of Health and Human Servs., No. 6:23-cv-00059-JDK (E.D. Tex. Jan. 30, 2023) (ECF No. 1).
54
See Memorandum Opinion and Order, Tex. Med. Ass’n. v. U.S. Dep’t of Health & Hum. Servs., No. 6:23-cv-00059-JDK, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023).
55
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.
56
Specifically, the District Court vacated the requirement under 26 CFR 54.9816-8T(c)(3)(i)(C), 29 CFR 2590.716-8(c)(3)(i)(C), and 45 CFR 149.510(c)(3)(i)(C) that for a qualified IDR
item and service to be considered the same or similar item and service, it must be billed under the same service code or a comparable code under a different procedural code system, such as
the Current Procedural Terminology (CPT) codes with modifiers, if applicable, Healthcare Common Procedure Coding System (HCPCS) with modifiers, if applicable, or Diagnosis-Related
Group (DRG) codes with modifiers, if applicable.
44

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released ­guidance57 to reflect the TMA IV
opinion and order related to the administrative fee to clarify that the $50 per party
per dispute administrative fee amount
established in the October 2022 guidance
applies for disputes initiated on or after
August 3, 2023, and until the Departments
take action to set a new administrative fee
amount.
On October 6, 2023, the Departments
and OPM released “FAQs About Consolidated Appropriations Act, 2021 Implementation Part 62”58 to provide guidance
related to the TMA III opinion and order.
On November 28, 2023, the Departments
released guidance in accordance with the
TMA III and TMA IV opinions and orders59
to clarify how certified IDR entities should
determine whether a dispute is appropriately batched and how to submit single
and batched air ambulance disputes.60
D. Federal Independent Dispute
Resolution Operations Proposed Rules
On November 3, 2023, the Departments published the Federal Independent
Dispute Resolution Operations proposed
rules61 (IDR Operations proposed rules).
Those proposed rules included new proposed requirements for disclosing information when initiating the Federal IDR
process and the provision of certain claims
codes with paper or electronic remittances.
Additionally, those proposed rules would
amend certain requirements related to the
open negotiation period, initiation of the
Federal IDR process, eligibility determinations, batched disputes, extensions due
to extenuating circumstances, and the collection of administrative fees and certified
IDR entity fees. Lastly, those proposed
rules would require plans and issuers to
register with the Federal IDR portal.
With respect to the administrative fee,
the Departments proposed in the IDR

Operations proposed rules to collect the
administrative fee directly from the parties rather than having the certified IDR
entities collect the administrative fee on
the Departments’ behalf. The Departments also proposed required timeframes
for the initiating and non-initiating parties
to pay the administrative fee and proposed
to establish consequences for non-payment of the administrative fee for each
party. Finally, to ensure that the Federal
IDR process is accessible to all parties,
the Departments proposed to charge both
parties a reduced administrative fee when
the highest offer made during open negotiation by either party was less than a
predetermined threshold and proposed to
charge the non-initiating party a reduced
administrative fee when the dispute is
determined ineligible by either the certified IDR entity or the Departments, as
applicable.
To align with these proposals, the
Departments also set forth the methodology inputs used to calculate the proposed
administrative fee amounts in the preamble to the IDR Operations proposed
rules that would be effective for disputes
initiated on or after January 1, 2025. The
Departments proposed that the full administrative fee amount would be $150 per
party per dispute, the reduced administrative fee for both parties when the highest
offer made by either party during open
negotiation was less than the threshold
would be $75 per party per dispute (50
percent of the full administrative fee
amount), and the reduced administrative
fee for non-initiating parties in ineligible
disputes would be $30 per non-initiating
party per ineligible dispute (20 percent of
the full administrative fee amount).
The inputs to the methodology set forth
in this preamble and the administrative fee
amount the Departments are finalizing in
these final rules are effective for disputes

initiated on or after the effective date of
these final rules. In contrast, the proposed
administrative fee structure and administrative fee amounts based on inputs to the
methodology set forth in the IDR Operations proposed rules, if finalized, would be
effective for disputes initiated on or after
January 1, 2025. The administrative fee
policies finalized in these final rules are
effective, and unchanged by the proposals in the IDR Operations proposed rules,
unless and until superseding administrative fee policies in the IDR Operations
proposed rules are adopted.
E. Public Comments Received in
Response to Proposed Rules
In the September 26, 2023 Federal
Register, the Departments published the
Federal Independent Dispute Resolution
(IDR) Process Administrative Fee and
Certified IDR Entity Fee Ranges proposed
rules (IDR Fees proposed rules),62 which
proposed to amend existing regulations to
provide that the administrative fee amount
charged by the Departments to participate
in the Federal IDR process, and the ranges
for certified IDR entity fees for single and
batched determinations, would be set by
the Departments through notice and comment rulemaking. The IDR Fees proposed
rules also discussed the methodology used
to calculate the administrative fee and the
considerations used to develop the certified IDR entity fee ranges. Finally, the
IDR Fees proposed rules proposed the
amount of the administrative fee and 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.
The Departments received 44 comments on many different aspects of the
IDR Fees proposed rules. In particular, the
Departments received many comments
stating that the administrative fee amount

U.S. Department of Health and Human Services, U.S. Department of Labor, and U.S. Department of the Treasury (August 2023). Federal Independent Dispute Resolution (IDR) Process
Administrative Fee FAQs. https://www.cms.gov/files/document/idr-admin-fees-faqs-081123-508.pdf-0.
58
See U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Office of Personnel Management (October 6, 2023), FAQs about Consolidated
Appropriations Act, 2021 Implementation Part 62, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-62.pdf and https://www.
cms.gov/files/document/faqs-part-62.pdf.
59
See U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Office of Personnel Management (November 28, 2023), FAQs about Consolidated Appropriations Act, 2021 Implementation Part 63, available at https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-62.pdf and https://
www.cms.gov/files/document/faqs-part-63.pdf.
60
See U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Office of Personnel Management (November 28, 2023), Federal Independent
Dispute Resolution (IDR) Process Batching and Air Ambulance FAQs, available at https://www.cms.gov/files/document/faqs-batching-air-ambulance.pdf.
61
88 FR 75744.
62
88 FR 65888.
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January 29, 2024

and the certified IDR entity fee ranges
create a barrier to accessing the Federal
IDR process for many parties, particularly
small, rural, or independent providers, and
these comments supported retaining the
current $50 per party per dispute administrative fee amount. The Departments also
received many comments on the proposed
certified IDR entity fee ranges, particularly
the proposed additional tiered batched fee
range for disputes with more than 25 line
items. While some commenters supported
the increased flexibility for certified IDR
entity fee ranges, many commenters were
concerned about the proposed further
increases in the certified IDR entity fee
ranges. The Departments respond to these
comments in section II of this preamble.
Many comments concerned matters that were outside of the scope of
the proposed rules and therefore are not
addressed in these final rules. For example, the Departments received comments
stating that the current Federal IDR process lacks the efficiency needed to resolve
disputes quickly. The Departments also
received many comments related to the
eligibility determination process, including on difficulties determining eligibility
in States with a specified State law and
the lack of information provided by plans
and issuers. Comments on the efficiency
of the Federal IDR process and eligibility determinations relate to operations
that are outside of the scope of these final
rules’ limited focus on the administrative
fee and certified IDR entity fee ranges and
the processes for setting such amounts.
The Departments encourage interested
parties to submit comments regarding the
proposals included in the IDR Operations
proposed rules, including the proposal to
establish a Departmental eligibility review
process, in accordance with the instructions set forth in those proposed rules.63
Some other out-of-scope comments
addressed the impacts of the Federal IDR
portal closure, which occurred in response
to litigation previously described in this
preamble. For example, the Departments
received comments requesting that, as a
result of TMA IV, the Departments should
refund $300 to each party that paid a
$350 administrative fee between Janu63
64

ary 1, 2023 and August 3, 2023, and the
Departments should offer an extension to
parties that would have initiated a dispute
if the administrative fee during that time
was $50, rather than $350, to now initiate
that dispute. The Departments note that
this relief was requested by the plaintiffs
in TMA IV and was denied by the court.64
Comments also addressed the impact of
TMA III on the calculation of the QPA,
specifically asking the Departments to
address underpayments to providers due
to purported artificially suppressed QPAs.
Additionally, the Departments received
comments related to the batching requirements for submission of disputes. Some
of these comments addressed specific difficulties in batching emergency medicine,
radiology, and anesthesiology services
and expressed a desire to broaden the
batching criteria. While the IDR Operations proposed rules included proposals
related to the batching requirements, these
comments were outside the scope of this
rulemaking because the IDR Fees proposed rules did not propose any changes
to the batching requirements or calculation of the QPA.
Finally, the Departments received
many comments suggesting different
administrative fee structures. For example, the Departments received comments
suggesting that the administrative fee
amount be split between the parties, be
refundable to the prevailing party, be
funded 75 percent by plans and issuers
and 25 percent by providers or be payable
at the end of the Federal IDR process.
The Departments also received comments
recommending a variable administrative
fee amount tied to the amount in dispute
or the QPA, either for all disputes or just
for batched disputes. Further comments
suggested capping the administrative fee
amount or imposing a base administrative
fee amount and an additional tiered fee
amount based on the amount in dispute.
As a result of the TMA IV opinion and
order having set aside the Departments’
guidance establishing administrative fees,
the Departments set a goal of establishing
in rulemaking administrative fee amounts
that would be effective as close to January
1, 2024 as possible, because the current

$50 administrative fee amount is insufficient to satisfy the statutory requirement
that the total amount of fees paid for the
year be estimated to be equal to the amount
of expenditures estimated to be made for
the year in carrying out the Federal IDR
process. If the Departments were to continue to impose a $50 per party per dispute administrative fee amount throughout 2024, the Departments estimate that
they would collect approximately $24.6
million in administrative fees for the year
(492,000 administrative fees paid x $50
per party per dispute), as discussed further in section IV.D.2.a of this preamble.
As discussed further in section II.A of this
preamble, the Departments estimate that
their expenditures to carry out the Federal IDR process in 2024 will be approximately $56.6 million. Therefore, if the
administrative fee amount remains at $50
per party per dispute in 2024, the Departments would significantly under-collect
administrative fees required to carry out
the Federal IDR process. Accordingly,
to be able to implement an increase to
the administrative fee amount as soon
as possible, consistent with the statutory
requirement, the IDR Fees proposed rules
proposed the amount of the administrative
fee and the preamble to the proposed rules
described the methodology for calculating
it.
The Departments did not propose any
changes to the structure of the administrative fee as this would take longer to
develop and implement and would be
more efficiently operationalized with the
changes proposed in the IDR Operations
proposed rules, which are intended to be
more comprehensive. While the Departments considered alternative fee structures in this rulemaking, the Departments
were of the view that addressing the structure of the administrative fee in the IDR
Operations proposed rules would give
interested parties more time to comment,
consider, and prepare for any fee structure
change, because the effective date of the
IDR Operations proposed rules, if finalized, will be later than the effective date
of these final rules.
Additionally, the policies proposed in
the IDR Operations proposed rules would

See 88 FR 75744.
See Memorandum Opinion and Order, Tex. Med. Ass’n., et al. v. U.S. Dep’t of Health and Human Servs., et al., No. 6:23-cv-00059-JDK (E.D. Tex. August 3, 2023).

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require more time for the Departments to
develop and implement due to the substantial changes to the Federal IDR portal required by those proposals, if finalized, including adopting new processes
to collect the administrative fees directly
from the parties and collecting differing
amounts of administrative fees from different parties in certain circumstances, as
described further in the IDR Operations
proposed rules. Therefore, the Departments deferred those proposed changes
to the Federal IDR process and administrative fee structure and collection procedures to the IDR Operations proposed
rules and prioritized completing this
rulemaking.
The Departments encourage interested parties to submit relevant comments
regarding batching and the administrative
fee structure, the new inputs to the administrative fee methodology, and the amount
of the fee proposed in the IDR Operations
proposed rules, in response to those proposed rules.65
The Departments also sought to establish in rulemaking certified IDR entity fee
ranges that would be effective as close to
January 1, 2024 as possible, because this
effective date would provide predictability
for certified IDR entities, who must plan
for and finalize their 2024 certified IDR
entity fixed fee amounts, and parties, who
must budget for their participation in the
Federal IDR process taking into account
both the administrative and certified IDR
entity fees. Establishing the certified IDR
entity fee ranges in rulemaking with an
effective date close to January 1, 2024
would also allow for greater transparency
than the current method of establishing
the fee ranges in guidance.

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
will be set by the Departments through
notice and comment rulemaking, rather
than in guidance published annually. The
preamble to this rulemaking also sets forth
the methodology used to calculate the
administrative fee amount and the considerations used to develop the certified IDR
entity fee ranges. These rules also finalize
the administrative fee amount and certified
IDR entity fee ranges for disputes initiated
on or after the effective date of these rules.
The finalized administrative fee amount
and certified IDR entity fee ranges in these
rules will remain in effect until changed
by notice and comment rulemaking.
The IDR Fees proposed rules proposed
that the administrative fee amount and certified IDR entity fee ranges finalized in these
final rules would be effective for disputes
initiated on or after the later of the effective
date of these rules or January 1, 2024. As
these final rules will not be effective by January 1, 2024, the Departments are finalizing the proposal that the administrative fee
amount and certified IDR entity fee ranges
in these rules will be effective for disputes
initiated on or after the effective date of
these rules, which is 30 calendar days from
publication in the Federal Register.
II. Overview of the Final Rules—
Departments of the Treasury, Labor,
and HHS
A. Administrative Fee Amount and
Methodology

F. Scope and Purpose of Rulemaking

1. Summary of Proposed and Finalized
Policies

These final rules amend 26 CFR
54.9816-8(d)(2)(ii) and (e)(2)(vii), 29

Under section 9816(c)(8)(A) of the
Code,66 section 716(c)(8)(A) of ERISA,67

section 2799A-1(c)(8)(A) of the PHS
Act,68 and the October 2021 interim final
rules,69 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,70 section 716(c)(8)(B) of ERISA,71 section
2799A-1(c)(8)(B) of the PHS Act,72 and
the October 2021 interim final rules,73 the
administrative fee is established in a manner such that the total amount of administrative fees paid for a year are estimated
to be equal to the amount of expenditures
estimated to be made by the Departments
in carrying out the Federal IDR process
for that year.
The Departments proposed to establish the amount of the administrative fee
through notice and comment rulemaking
by amending 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 Departments also proposed at 26 CFR 54.98168(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 administrative fee
amount would be $150 per party per dispute, which would remain in effect until
changed by subsequent rulemaking.74
Under the proposed rules, the Departments would have retained the flexibility
to update the administrative fee more or
less frequently than annually if the total
estimated amount of administrative fees
paid or amount of expenditures estimated to be made by the Departments
in carrying out the Federal IDR process
changed such that a new administrative
fee amount would be required to satisfy
the requirement that the total amount of
administrative fees paid is estimated to
be equal to the amount of expenditures
estimated to be made by the Departments
in carrying out the Federal IDR process.

See 88 FR 75744.
26 U.S.C. 9816(c)(8)(A).
29 U.S.C. 1185e(c)(8)(A).
68
42 U.S.C. 300gg–111(c)(8)(A).
69
26 CFR 54.9816-8T(d)(2)(i), 29 CFR 2590.716-8(d)(2)(i), and 45 CFR 149.510(d)(2)(i).
70
26 U.S.C. 9816(c)(8)(B).
71
29 U.S.C. 1185e(c)(8)(B).
72
42 U.S.C. 300gg–111(c)(8)(B).
73
26 CFR 54.9816-8T(d)(2)(ii), 29 CFR 2590.716-8(d)(2)(ii), and 45 CFR 149.510(d)(2)(ii).
74
As previously mentioned, in the event the effective date of these final rules is after January 1, 2024, the $50 per party per dispute administrative fee amount in effect for 2023, as provided
in the October 2022 guidance, will continue to apply to disputes initiated between January 1, 2024 and the effective date of these rules.
65
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January 29, 2024

The Departments proposed to set the
administrative fee amount by estimating
the amount of expenditures made by the
Departments in carrying out the Federal
IDR process and dividing this amount by
the estimated total number of administrative fees paid by the parties. As explained
in the preamble to the IDR Fees proposed
rules, the Departments estimated the total
number of administrative fees paid based
on the total volume of closed disputes.
For the purpose of calculating the
administrative fee amount in the IDR
Fees proposed rules, the Departments
projected that approximately 225,000 disputes would be closed annually, resulting
in 450,000 administrative fees paid. Additionally, the Departments estimated that
the expenditures made by the Departments
for carrying out the Federal IDR process
in 2024 would be approximately $70 million.75 Using this methodology, 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 Departments
calculated the proposed administrative fee
for disputes initiated on or after the effective date of these rules, and continuing
until changed by subsequent rulemaking,
by dividing the annual expenditures of
approximately $70 million estimated to
be made by the Departments in carrying
out the Federal IDR process by 450,000,
the estimated annual number of administrative fees to be paid by the disputing
parties. This resulted in a proposed administrative fee amount of $150 per party per
dispute.76
After considering comments received
on the proposals, as discussed further in
this preamble section, the Departments are
finalizing the policy to set the administrative fee amount in notice and comment
rulemaking no more frequently than once
per calendar year. The Departments may
set the administrative fee less frequently
than annually if the Departments estimate
that the total amount of administrative fees
paid under the current administrative fee
amount would continue to be equal to the
amount of expenditures estimated to be
made by the Departments in carrying out

the Federal IDR process for the upcoming
calendar year.
Additionally, in response to comments
received on the proposals, the Departments are modifying the administrative
fee methodology used to estimate the
number of administrative fees paid. The
Departments will use the estimated number of administrative fees paid to certified
IDR entities, rather than the estimated
number of closed disputes, to estimate
the total number of administrative fees
paid. In addition, the Departments will
not assume, as set forth in the IDR Fees
proposed rules, a 25 percent reduction in
the volume of disputes as the result of the
District Court vacating certain batching
requirements in TMA IV. The Departments
are also revising the expenditures estimated to be made by the Departments in
carrying out the Federal IDR process from
approximately $70 million to approximately $56.6 million to reflect a reduction
in the Departments’ anticipated assistance
with eligibility determinations, as discussed later in this preamble. Collectively,
these modifications to the methodology
result in a finalized administrative fee
amount of $115 per party per dispute for
disputes initiated on or after the effective
date of these rules. As the administrative
fee methodology in the IDR Operations
proposed rules included some of the same
elements as the administrative fee methodology in the IDR Fees proposed rules,
the Departments will consider whether
any modifications made to the administrative fee methodology in these final rules
should also be adopted when finalizing the
administrative fee amount using the methodology proposed in the IDR Operations
proposed rules.
2. Summary of Comments Received and
Responses to Comments
a. Establishing the Administrative Fee in
Notice and Comment Rulemaking
Many commenters supported the proposal to establish the administrative fee
in notice and comment rulemaking. Com-

menters stated that this transparent process would allow the public to evaluate
the administrative fee amount and provide
feedback on the feasibility of providers
using the Federal IDR process. However,
several commenters opposed the proposal
to establish the administrative fee amount
more or less frequently than annually and
stated that adopting this proposal would
introduce uncertainty in the Federal IDR
process and would make budgeting more
challenging. These commenters requested
that the Departments update the administrative fee annually, to balance stability,
transparency, and responsiveness, which
they stated would mitigate the impact of
changes to the administrative fee. One
commenter supported the proposal to
establish the administrative fee amount
more or less frequently than annually, but
only if a mid-year change led to a decrease
to the administrative fee amount. Commenters also stated that any increases to
the administrative fee amount should be
on an annual basis with advance notice
to interested parties. One of these commenters stated that the administrative fee
amount should be set predictably and with
at least 90 days’ advance notice. Some
commenters requested further clarification on the process for proposing and
finalizing administrative fee amounts in
notice and comment rulemaking.
The Departments agree that one of the
goals of establishing the administrative fee
amount in notice and comment rulemaking is to foster transparency and allow
interested parties to provide feedback on
the methodology and process for setting
the proposed fee amount. The Departments recognize commenters’ concerns
about establishing the administrative fee
amount more or less frequently than annually, and the Departments are finalizing a
policy under which they would establish
the administrative fee amount no more
frequently than once per calendar year. In
addition, the Departments are finalizing
as proposed the proposal to change the
administrative fee amount less frequently
than annually if the expenditures estimated
to be made by the Departments in carrying

The list of expenditures associated with the estimated $70 million was provided in the IDR Fees proposed rules at 88 FR 65893.
As described in the IDR Fees proposed rules, the Departments estimated that the proposed administrative fee amount of $150 per party per dispute would result in an estimated annual
collection approximately equal to the estimated annual expenditures of approximately $70 million. See 88 FR 65888 at 65899.

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out the Federal IDR process and the estimated total amount of administrative fees
paid in the upcoming year are estimated
to be equal. If the Departments determine
that the estimated total amount of administrative fees paid in a future year at the
current administrative fee amount would
be less than the expenditures estimated to
be made by the Departments in carrying
out the Federal IDR process for that year,
the Departments would propose to raise
the administrative fee amount in notice
and comment rulemaking. Alternatively,
if the Departments determine that the estimated total amount of administrative fees
paid in a future year at the current administrative fee amount would be more than
the expenditures estimated to be made in
carrying out the Federal IDR process for
that year, the Departments would propose
to lower the administrative fee amount in
notice and comment rulemaking. Consistent with the statute, the Departments
will set the administrative fee such that
the estimated total amount of administrative fees paid is equal to the amount of
expenditures estimated to be made by the
Departments in carrying out the Federal
IDR process.77
The Departments also reiterate that
using the notice and comment rulemaking process to establish the administrative
fee amount will provide interested parties
with substantial advance notice of fee
changes, so additional advance notice is
not needed. As described in the IDR Fees
proposed rules, the Departments will provide details on the methodology used to
determine the proposed administrative fee
amount, and the proposed administrative
fee amount, if finalized, would be effective prospectively. Interested parties will
be provided with a period to submit public comments on the proposals, and the
Departments will consider all comments
submitted within the comment period in
developing the final rules.
In addition, other commenters raised
concerns regarding the amount of the

administrative fee changing between any
proposed and final rules. One commenter
did not support making changes to the
administrative fee amount between the
proposed and final rules, while another
commenter stated that any such changes
should be by no more than 10 percent.
The Departments acknowledge these
commenters’ suggestions but note that the
Departments may have more recent data
available to estimate the total amount of
administrative fees paid or the amount of
expenditures estimated to be made by the
Departments in carrying out the Federal
IDR process while developing the final
rules than they had while developing the
IDR Fees proposed rules, and it is reasonable for the Departments to rely on the
more recent data in developing the final
rules, provided that they use the methodology described in the preamble to the
IDR Fees proposed rules or a methodology modified from the preamble to the
IDR Fees proposed rules in response to
comments. As in these final rules, these
circumstances may result in the Departments finalizing a different administrative
fee amount than the amount proposed.
The finalized administrative fee amount
will differ from the amount proposed, if
necessary, to comply with the statutory
requirement that the total administrative
fees paid are estimated to be equal to the
amount of expenditures estimated to be
made by the Departments in carrying out
the Federal IDR process.78
One commenter was concerned about
the ability to comment on the administrative fee amount rather than just the methodology used to calculate the amount and
stated that only seeking comment on the
methodology could inhibit commenters’
ability to accurately express the impact of
the proposed fee amount on a disputing
party’s access to the Federal IDR process.
As previously explained, the Departments are finalizing a policy to establish
the administrative fee amount in notice
and comment rulemaking no more fre-

quently than once per calendar year and
will provide opportunity for comment
on any new proposed administrative fee
amount, as well as any changes to the
methodology used to calculate the administrative fee amount.
b. Administrative Fee Methodology
– Estimated Total Number of
Administrative Fees Paid
Many commenters opposed the
Departments’ proposed administrative
fee methodology for estimating the total
number of administrative fees to be paid.
Many commenters suggested that estimating the total number of administrative fees
paid based on the projected total number
of disputes closed would not capture all
disputes in which administrative fees are
paid. Some commenters were concerned
that this methodology could result in an
overpayment of administrative fees to the
Departments. One of these commenters
was concerned that the data from the sixmonth period in 2023 used to estimate the
number of disputes closed would be radically different from 2024 data. Several
commenters suggested using other metrics to calculate the estimated total number of administrative fees paid, including
the number of disputes initiated, the number of disputes for which a certified IDR
entity fee was paid, and the number of disputes for which parties submitted offers.
Moreover, some commenters asserted
that using disputes closed contradicts the
Departments’ regulations requiring each
party to pay the administrative fee at the
time the certified IDR entity is selected
and the Departments’ guidance permitting
certified IDR entities to collect the administrative fee from parties up to the time of
offer submission.79
The Departments proposed to use the
projected total number of disputes closed
to calculate the administrative fee amount
because that metric reflected collections
under current collections processes,80 and

Section 9816(c)(8)(B) of the Code, section 716(c)(8)(B) of ERISA, and section 2799A-1(c)(8)(B) of the PHS Act.
Id.
79
See 26 CFR 54.9816-8(d)(2)(i), 29 CFR 2590.716-8(d)(2)(i), and 45 CFR 149.510(d)(2)(i); see also section 4.8 of the Federal Independent Dispute Resolution (IDR) Process Guidance
for Certified IDR Entities. October 2022. https://www.cms.gov/cciio/resources/regulations-and-guidance/downloads/federal-independent-dispute-resolution-process-guidance-for-certified-idr-entities.pdf.
80
Under current 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.
77
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January 29, 2024

the Departments were of the view that it
was a reliable metric upon which to base
the estimated total number of administrative fees to be paid. However, after considering the comments, the Departments
agree with the commenters who stated
that estimating the total number of administrative fees paid using the projected
number of disputes closed would not capture all disputes in which administrative
fees are paid because administrative fees
may be paid for disputes that have not
yet been closed. To capture all disputes in
which parties pay administrative fees, the
Departments are finalizing the administrative fee amount based on a methodology
that estimates the total number of administrative fees paid by projecting Federal
IDR portal data on the number of administrative fees paid to certified IDR entities,
as explained in the subsequent paragraphs.
The number of administrative fees paid to
certified IDR entities is currently the best
available metric in the Federal IDR portal data to capture all administrative fees
parties pay for disputes in any stage of the
Federal IDR process.
In the preamble to the IDR Fees proposed rules, the Departments set the
administrative fee amount based on the
projection that 225,000 disputes would be
closed annually. Because both initiating
and non-initiating parties to a dispute are
required to pay the administrative fee, the
Departments estimated in the preamble to
the IDR Fees proposed rules that 450,000
administrative fees would be paid annually, or 37,500 per month. As explained
above, in setting the administrative fee
in these final rules, the Departments are
using the total number of administrative
fees paid to certified IDR entities for disputes in any stage of the Federal IDR process after certified IDR entity selection.
Using the methodology being adopted in
these final rules, the Departments estimate
that 492,000 administrative fees will be
paid annually, or 41,000 administrative
fees will be paid per month, by the parties.

The Departments estimate the total number of administrative fees paid annually
based on the monthly average number of
administrative fees paid to certified IDR
entities between February 2023 and July
2023. This monthly average was approximately 41,000, and the Departments projected this figure forward by 12 months to
estimate that 492,000 administrative fees
will be paid annually.
The Departments are using data from
the same time period that was used in the
IDR Fees proposed rules (February 2023
to July 2023), without updating to newer
data. Data from this time period remains
the best available data to project future
trends due to portal closures and other
Federal IDR process changes that began
in August 2023 due to the TMA III and
TMA IV opinions and orders. While the
Departments considered using data from
the most recent six-month period prior
to the finalization of this rule (June 2023
to November 2023), they concluded this
would inaccurately reflect the monthly
average number of administrative fees
paid, as various aspects of the Federal
IDR process were temporarily suspended
from August 4, 2023 to October 6, 2023
for all disputes.81
The Departments considered comments providing alternatives for estimating the total number of administrative fees
paid in calculating the administrative fee
amount. Some commenters wanted the
Departments to estimate the total number
of administrative fees paid based on the
number of disputes initiated. This metric
is inaccurate for purposes of calculating
the administrative fee amount because the
administrative fee may not be collected
for all disputes initiated. The obligation
for parties to pay the administrative fee
attaches at the time of certified IDR entity
selection (with guidance permitting certified IDR entities to collect the administrative fee from parties until the time of
offer submission). Therefore, if a dispute
is withdrawn before selection of the cer-

tified IDR entity, there is no obligation
for the parties to pay administrative fees
for that dispute. For this reason, using the
total number of disputes initiated to estimate the number of administrative fees to
be paid in the administrative fee methodology risks the Departments underfunding
the Federal IDR process.82
Other commenters requested the
Departments to estimate the total number
of administrative fees paid based on the
number of disputes for which a certified
IDR entity fee was paid. Because parties
are not required to pay their certified IDR
entity fees and administrative fees at the
same time, the number of certified IDR
entity fees paid would not necessarily
reflect the number of administrative fees
paid. Therefore, this metric would also be
inaccurate for purposes of calculating the
administrative fee amount.
Finally, the Departments also considered estimating the total number of administrative fees paid based on the number
of disputes for which parties submitted
offers. However, the Departments did
not believe this metric would accurately
reflect the estimated number of administrative fees that would be paid, since parties may pay administrative fees without
submitting offers. Thus, the metric could
understate the total number of administrative fees paid.
In summary, the Departments are of
the view that it is most accurate to use the
total number of administrative fees paid
to certified IDR entities in the administrative fee methodology rather than the
other metrics suggested by commenters
in the prior paragraphs, as this metric
reflects actual administrative fees that
have been paid for disputes in any stage
of the Federal IDR process after certified
IDR entity selection.83 Therefore, in recognition of commenters’ concerns about a
methodology that could underestimate the
total number of administrative fees paid in
2024, resulting in an overestimate of the
amount of the administrative fee needed

Of note, batched disputes and single disputes involving air ambulance services also remained suspended after October 6, 2023 and would not be reflected in the most recent data.
In the IDR Operations proposed rules, the Departments proposed to use the total volume of disputes projected to be initiated because the proposed operational changes in those rules, if
finalized, would result in the Departments’ collection of administrative fees closer to a dispute’s date of initiation, and therefore, it may be appropriate to estimate the total volume of administrative fees paid using the total volume of disputes initiated. 88 FR 75793.
83
As explained in these final rules, under current processes, the total volume of administrative fees paid to certified IDR entities is the best metric to use in the administrative fee methodology
to align with statute requiring the Departments to estimate the total number of administrative fees paid. As operations of the Federal IDR process improve over time, the Departments will
consider changes to the methodology to best estimate the total number of administrative fees paid.
81
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for 2024, the Departments are establishing the administrative fee methodology
using the total number of administrative
fees paid to certified IDR entities, rather
than the total number of closed disputes,
to estimate the total number of administrative fees paid in 2024.
The Departments also received comments regarding the Departments’ projections of the total number of closed
disputes used to estimate the total number
of administrative fees paid. Several commenters suggested that the Departments’
estimate of 225,000 closed disputes is too
low. A few commenters suggested that the
Departments are underestimating utilization of the Federal IDR process and recommended that the Departments analyze
the available data from States implementing similar policies before the No Surprises Act.
In the IDR Fees proposed rules, the
Departments estimated that 225,000
disputes would be closed annually, and
because both the initiating and non-initiating parties to a dispute are required to pay
the administrative fee, 450,000 administrative fees would be paid annually. The
Departments now estimate that 492,000
administrative fees will be paid to certified
IDR entities in the year, as described earlier in this preamble section. The Departments continue to be of the view that Federal IDR process data is the best available
data to project trends in the Federal IDR
process, especially because regulations
and volume differ in State IDR processes.
As mentioned in the IDR Fees proposed
rules, the Departments initially anticipated
17,333 disputes involving non-air ambulance services would be initiated during
the first year of implementation of the Federal IDR process. The Departments developed this estimate based on the experience
of New York State. However, the use of
State data resulted in the Departments
underestimating utilization of the Federal
IDR process, as nearly 335,000 disputes
were initiated in the Federal IDR process

between April 2022 and March 2023.84 As
demonstrated by this result, past data from
State processes has limited applicability
in predicting future use of the Federal
IDR process. For this reason, the Departments are of the view that it is better to
use Federal IDR process data rather than
State data to estimate the total number of
administrative fees paid.
In addition, several commenters disagreed with the Departments’ assumption
of a 25 percent reduction in the volume
of disputes in estimating the total number
of administrative fees paid to account for
the impact of TMA IV’s vacatur of batching regulations and guidance, or asked
for more detail on how the projected 25
percent reduction factor was determined,
including the details on how the batching of claims will be treated in the future.
One commenter noted that the vacatur of
the $350 administrative fee amount and
batching regulations as a result of TMA IV
allows many additional claims to become
economically viable, so the Departments
should expect dispute volume to increase.
Another commenter stated that the Departments cannot know with certainty that the
TMA IV opinion and order will decrease
the number of disputes. This commenter
also asserted that TMA IV did not affect
the batching criteria that serve as the largest obstacle for emergency medicine, and
therefore there will not be large batches
in emergency medicine, which the commenter noted comprised over 70 percent
of disputes reflected in the Partial Report
on the Independent Dispute Resolution
(IDR) Process October 1 – December 31,
2022.85 Moreover, a few commenters suggested that the TMA III opinion and order
will increase dispute volume as providers
will continue to see low QPAs from plans
and issuers and will rely on the Federal
IDR process for appropriate payment. One
commenter agreed with the Departments’
assumption that the TMA IV opinion and
order will decrease the volume of disputes but disagreed with the Departments’

rationale that the increased number of line
items will take more time to close. This
commenter expected that providers batching claims rather than submitting claims
individually would increase efficiencies in
the Federal IDR process.
After reviewing the comments, the
Departments have reconsidered the
assumption that the number of disputes
will decrease by 25 percent as a result of
TMA IV’s vacatur of batching regulations
and guidance. Therefore, the Departments
are not finalizing the projected 25 percent
reduction in the estimated total number of
administrative fees paid.
The Departments recognize that certain
batching criteria remain in place, such as
criteria that impact the batching of emergency medicine claims, and items and services included in such claims will have to
be submitted as separate disputes if they do
not comply with the applicable batching
criteria.86 Moreover, because the Departments are finalizing the administrative
fee amount based on a methodology that
estimates the total number of administrative fees paid based on the total number of
administrative fees paid to certified IDR
entities, rather than the total number of
closed disputes, the methodology no longer requires the Departments to make an
assumption on whether batched disputes
will take more time to close after the vacatur of the batching regulations as a result
of TMA IV. In addition, the Departments
do not have data available to support commenters’ assertion that TMA III will lead
more providers to rely on the Federal IDR
process for appropriate claims payment.
Plans and issuers are required to calculate
QPAs using a good faith, reasonable interpretation of the applicable statutes and
regulations that remain in effect after the
TMA III opinion and order.87 Furthermore,
in their experience operating the Federal
IDR process, the Departments have not
seen a clear or quantifiable relationship
between changes in policy and changes
in the number of disputes initiated. The

84
Centers for Medicare & Medicaid Services (April 27, 2023). Federal Independent Dispute Resolution Process - Status Update. https://www.cms.gov/files/document/federal-idr-processstatus-update-april-2023.pdf.
85
U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury. Partial Report on the Independent Dispute Resolution (IDR) Process October
1 – December 31, 2022. https://www.cms.gov/files/document/partial-report-idr-process-octoberdecember-2022.pdf.
86
U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, Office of Personnel Management (October 6, 2023). FAQs about Consolidated
Appropriations Act, 2021 Implementation Part 62. https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-62.pdf and https://www.cms.gov/files/
document/faqs-part-62.pdf.
87
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January 29, 2024

Departments are of the view that the historical data from February 2023 to July
2023 is the best available data at this time
to project utilization of the Federal IDR
process in 2024, and the Departments are
therefore finalizing the administrative fee
amount based on a methodology that does
not include a 25 percent reduction in the
volume of disputes.
c. Administrative Fee Methodology –
Estimated Expenditures
The Departments also received comments related to their estimated expenditures for purposes of calculating the
administrative fee amount. Several commenters suggested that the Departments
should disclose more data supporting the
estimated costs to carry out the Federal
IDR process in the administrative fee
methodology to provide the public with
an opportunity to comment. Some of these
commenters asserted that the IDR Fees
proposed rules did not provide enough
detail on the estimated expenditures to
allow interested parties to provide meaningful comment on the proposed administrative fee amount. One commenter urged
the Departments to establish a regular
process for detailing the Departments’
data on the administrative fee, including
an annual disclosure statement with a balance sheet, to promote transparency and
predictability. A few commenters disputed
the Departments’ reference that Freedom
of Information Act (FOIA) regulations
prevent the Departments from providing
detail on certain estimated expenditure
amounts. These commenters stated that
without this transparency, interested parties were not afforded an opportunity to
meaningfully comment on the proposals
related to the administrative fee amount
and methodology inputs.
The Departments are finalizing the
administrative fee amount based on
a methodology that divides the “estimated,” rather than “projected,” expen-

ditures to carry out the Federal IDR
process by the estimated total number
of administrative fees to be paid in the
year. The use of “estimated” rather than
“projected” expenditures is to ensure the
terminology used to describe the methodology is consistent with that of the statutory text.88 To calculate the estimated
expenditures to carry out the Federal
IDR process, the Departments included
the Federal resources needed to carry out
the Federal IDR process, such as future
personnel and contract costs. The preamble to the IDR Fees proposed rules provided an overview of the future contract
costs and Federal resources included in
the estimated expenditures and explained
that the estimated expenditures to carry
out the Federal IDR process in 2024 were
approximately $70 million. The Departments disagree with commenters that the
Departments did not provide sufficient
information to allow meaningful comment. In particular, in the preamble to
the IDR Fees proposed rules, the Departments provided details on the types of
costs that are included in the estimated
expenditures.89
While the Departments described the
contract costs and Federal resources associated with estimated expenditures to
carry out the Federal IDR process in the
preamble to the IDR Fees proposed rules,
in response to comments requesting additional specifics on the estimated expenditures and in an effort to promote transparency, the Departments are providing
further detail on costs included in the total
estimated expenditures in these final rules
within the bounds of the Departments’
ability to disclose these amounts. To avoid
releasing sensitive contract information,
the Departments are breaking down the
costs, which include the future contract
and Federal personnel costs, by category
of expenditure, and providing approximate cost estimates for carrying out the
following categories of Federal IDR process activities:90

•

Maintaining, operating, and improving the Federal IDR portal, certifying
IDR entities, and collecting data from
certified IDR entities (approximately
$26,360,000);
• Conducting program integrity activities, such as certain QPA audits (as
further described subsequently in
this preamble) and IDR decision
audits, and receiving and investigating Federal IDR process-related complaints (approximately $13,060,000,
of which QPA audits resulting from
complaints filed by providers, facilities, or providers of air ambulance
services comprise approximately
$5,000,000);
• Providing outreach to parties and
technical assistance to certified IDR
entities, including assisting with eligibility determinations when the volume of disputes submitted exceeds
the capacity of certified IDR entities to perform those determinations
(approximately $11,630,000, of
which assisting with eligibility determinations comprises approximately
$10,000,000);91 and
• Collecting
administrative
fees
(approximately $5,530,000), which
includes costs to invoice certified
IDR entities for administrative fees
collected, provide the system infrastructure for certified IDR entities to
record and remit administrative fees
collected, track data on fees collected
and make continuous improvements
to the collections process and invoicing systems.
The Departments are publishing summary-level estimated budget information
and have provided meaningful data for
public input for the purposes of calculating the administrative fee amount. The
Departments intend to continue to provide
data on the Federal IDR process to promote transparency and predictability in
the administrative fee amount, including
publishing quarterly public reports with

Section 9816(c)(8)(B) of the Code, section 716(c)(8)(B) of ERISA, and section 2799A-1(c)(8)(B) of the PHS Act.
88 FR 65893.
As discussed further later in this preamble section, the Departments have reconsidered costs associated with total estimated expenditures of carrying out the Federal IDR process and are
revising the total estimated expenditures for 2024 from approximately $70 million to approximately $56.6 million. Additionally, certain expenses apply across multiple categories that were
included in the IDR Fees proposed rules. This revised combination of categories better provides a meaningful cost estimate of these activities.
91
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.
88
89
90

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the Departments’ expenditures and administrative fee collections.92
In response to commenters’ concerns
regarding the Departments’ reference to
the applicability of FOIA exemptions to
information shared during the rulemaking
process, the Departments clarify that they
will disclose information in response to
any requests in accordance with the FOIA
and accompanying regulations. However,
the Departments are not publishing specific future contract estimates in this rule
in response to commenters’ requests for
more detail on estimated expenditures of
Federal IDR process activities and the
data underlying those estimates because
publishing those contract estimates could
undermine future contract procurements.
For example, if the Departments were to
publish the projected future cost of the
contracts used to maintain the Federal IDR
portal, the Federal Government would be
meaningfully disadvantaged in future contract negotiations related to the Federal
IDR portal, as bidders would know how
much the Departments anticipate such
a future contract being worth. Although
current contract awards are published and
publicly available,93 these award amounts
do not necessarily reflect the future value
of the contract, as there may be future
changes in policy and operations and the
scope of work.
The Departments are of the view that
interested parties had sufficient information to meaningfully comment on the IDR
Fees proposed rules. For example, commenters provided valuable information in
their comments regarding how the Departments should estimate the total number of
administrative fees paid. Based on these
comments, the Departments modified the
methodology accordingly. Similarly, the
Departments provided detailed information in the IDR Fees proposed rules on

their calculation of the estimated expenditures to carry out the Federal IDR process.
Specifically, the Departments detailed the
types of activities included in estimating
the annual expenditures of approximately
$70 million and received comments on
these activities. After considering comments received on these details of the
administrative fee methodology, the
Departments have revised this estimate
of annual expenditures down to approximately $56.6 million, as explained in later
paragraphs.
In addition, many commenters raised
concerns about the inclusion of certain
types of expenses in the administrative fee
methodology. Several commenters recommended excluding all or some of the QPA
audit costs given that the QPA also serves
a purpose outside of the Federal IDR process in calculating patient cost sharing.
Some commenters asked the Departments
to disclose their total expenditures on
QPA audits and the portion proposed to be
funded by administrative fees compared
to other sources.
As previously mentioned, the Departments are required to include estimated
expenditures to carry out the Federal IDR
process, which include contract costs
and Federal resources, in calculating the
administrative fee amount. Accordingly,
the Departments disagree with commenters who suggested that QPA audit costs
should not be included in the calculation
of the administrative fee amount and are
adopting an administrative fee methodology that includes certain QPA audit costs
in the estimated expenditures. For any
dispute in the Federal IDR process, a plan
or issuer would have been required to disclose the QPA to the provider along with
the initial payment or notice of denial of
payment for items and services, and disputing parties must include the QPA for

items and services when initiating a dispute. Certified IDR entities are required to
consider the QPA when selecting between
the offers submitted by disputing parties
when determining the total out-of-network payment rate for items and services
subject to the Federal IDR process.94
Furthermore, it is the responsibility of
the Departments (or the applicable State
authorities), rather than the provider,
facility, provider of air ambulance services, or the certified IDR entity, to monitor plan and issuer compliance with the
QPA requirements.95 To date, the Departments have only conducted audits as
part of investigations of complaints, and
anticipate continuing to conduct these
risk-based audits in the future, though
the No Surprises Act permits the Departments to conduct random and risk-based
audits.96 Given the role of the QPA in the
Federal IDR process and the direct impact
on providers, performing audits on plans
and issuers in response to allegations that
the plan’s or issuer’s QPAs are inaccurate
is necessary to carry out the Federal IDR
process and promotes the integrity of and
confidence in the Federal IDR process.
Moreover, addressing concerns about
inaccurately calculated QPAs helps to
ensure plans and issuers provide correctly
calculated QPAs when they participate in
the Federal IDR process. For example, in
the absence of QPA audits to investigate
complaints from providers, facilities, and
providers of air ambulance services that
one or more of a plan’s or issuer’s QPAs
are inaccurate, plan and issuer compliance with QPA requirements would go
unchecked.97 Certified IDR entities must
consider the relevant QPA in making
each payment determination under the
No Surprises Act,98 and unchecked QPAs
would significantly threaten the integrity
of QPAs and the payment determinations

92
See, e.g., U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of the Treasury. Initial Report on the Independent Dispute Resolution (IDR) Process
April 15 – September 30, 2022. https://www.cms.gov/files/document/initial-report-idr-april-15-september-30-2022.pdf. U.S. Department of Health and Human Services, U.S. Department
of Labor, U.S. Department of the Treasury. Partial Report on the Independent Dispute Resolution (IDR) Process October 1 – December 31, 2022. https://www.cms.gov/files/document/
partial-report-idr-process-octoberdecember-2022.pdf.
93
Available at www.sam.gov.
94
Section 9816(c)(5)(C)(i)(I) of the Code, section 716(c)(5)(C)(i)(I) of ERISA, and section 2799A-1(c)(5)(C)(i)(I) of the PHS Act.
95
Section 9816(a)(2)(A)(i) of the Code, section 716(a)(2)(A) of ERISA, and section 2799A-1(a)(2)(A)(i) of the PHS Act. See also 86 FR 36899. However, a provider or facility may always
assert to the certified IDR entity that additional information points in favor of the selection of its offer as the out-of-network payment amount, even where that offer is for a payment amount
that is different from the QPA. 87 FR 52627.
96
Section 9816(a)(2)(A)(ii) of the Code, and section 2799A-1(a)(2)(A)(ii) of the PHS Act. The July 2021 interim final rules describe the enforcement responsibilities for each Department and
OPM. 86 FR 36899 (July 13, 2021). https://www.federalregister.gov/documents/2021/07/13/2021-14382/requirements-related-to-surprise-billing-part-i.
97
The accuracy of a plan’s or issuer’s QPA (or QPA methodology) may not be reviewed within a payment determination under the Federal IDR process. See 86 FR 55996.
98
Section 9816(c)(5)(C)(i)(I) of the Code, section 716(c)(5)(C)(i)(I) of ERISA, and section 2799A-1(c)(5)(C)(i)(I) of the PHS Act.

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made by certified IDR entities. These
audits help to increase transparency into
the QPA calculation methodology and
encourage compliance among plans and
issuers. Accordingly, QPA audits are an
integral part of the Federal IDR process,
the costs of which are reasonably included
in the calculation of the administrative fee
amount.
In estimating the expenditures to carry
out the Federal IDR process, the Departments are including estimated costs only
for certain QPA audits that the Departments anticipate incurring to investigate
complaints regarding inaccurate QPAs
made by providers, facilities, and providers of air ambulance services under the
Federal IDR process. The Departments
are not including the costs of QPA audits
conducted: (1) in connection with Department of Labor, OPM, or Department of
the Treasury investigations; (2) randomly;
or (3) in response to complaints from consumers, as not all of these audits are necessarily related to the Federal IDR process.
The Departments are of the view that only
the costs related to QPA audits conducted
in response to complaints from entities that
are potential parties to a payment determination are sufficiently related to the Federal IDR process to justify their inclusion
in the administrative fee calculation. For
example, consumers who complain that a
plan or issuer inaccurately calculated their
cost sharing based on an erroneously calculated QPA will not be involved in the Federal IDR process, and therefore the costs
of such audits are appropriately excluded
from those costs supported by administrative fees paid by parties to the Federal IDR
process. Because HHS is primarily responsible for the implementation of the Federal
IDR process, the Departments view similarly random QPA audits that may be conducted by the Departments, as well as any
QPA audits in connection with Department
of Labor, OPM, and Department of the
Treasury investigations.
The costs of HHS conducting QPA
audits for complaints that a plan’s or issuer’s QPAs are inaccurate are estimated

to be approximately $5,000,000 in 2024.
As plans and issuers improve their compliance in calculating QPAs correctly,
the Departments anticipate that the costs
of conducting these audits will decrease,
which would be reflected in the estimated
expenditures used to determine future
administrative fee amounts.
Several commenters also disagreed
with including costs associated with
assisting with eligibility reviews in the
estimated expenditures to carry out the
Federal IDR process. A few of these commenters noted that certified IDR entities
are responsible for conducting eligibility
reviews and therefore certified IDR entity
fees should cover this cost. Some commenters asserted that such costs should be
recovered through the non-prevailing party’s certified IDR entity fee, as the eligibility determination is part of the payment
determination. One of these commenters
expressed concern that including this
expense would incentivize certified IDR
entities to understaff as HHS would intervene to address a staffing shortage.
The Departments disagree that the costs
of assisting with eligibility determinations
should be excluded from estimated expenditures. Certified IDR entities voluntarily
participate in the Federal IDR process and
set their certified IDR entity fees within
ranges established by the Departments to
ensure they remain financially viable and
that such fees can cover their operating
expenses to participate in the Federal IDR
process, which include the costs incurred
in determining the eligibility of items
and services for the Federal IDR process.
While certified IDR entities are responsible for making eligibility determinations,
and therefore incur costs associated with
this activity, the Departments have also
incurred costs since November 2022
to assist certified IDR entities in making these determinations by performing
research and outreach on disputes pending
eligibility determinations, including identifying and obtaining information necessary for certified IDR entities to make eligibility determinations, and will continue

to incur such costs in 2024.99 The Departments disagree with the commenter that
stated that the Departments’ assistance
would incentivize certified IDR entities
to understaff. Certified IDR entities could
not have reasonably predicted the amount
of personnel they would need to make eligibility determinations within the required
timeframe given the extremely high volume of disputes. Moreover, it has been
difficult for certified IDR entities to make
staffing adjustments in response to utilization of the Federal IDR process due to the
repeated temporary pauses in the Federal
IDR portal resulting from litigation matters and changes in operations.
When the Departments first developed
the Federal IDR process and the rules and
guidance establishing how certified IDR
entities were to calculate their fees for
the scope of work they were expected to
perform, the Departments and the certified
IDR entities did not anticipate the significant difficulty and costs involved in determining eligibility for the Federal IDR
process. After six months of operating the
Federal IDR process and receiving feedback from disputing parties and certified
IDR entities, the Departments determined
that it was necessary to assist certified
IDR entities with determining eligibility
through performing research and outreach
on disputes pending eligibility determinations, including identifying and obtaining
information necessary to make an eligibility determination.100 The Departments
determined that this course of action was
necessary when it became clear that eligibility determinations were taking significantly longer than the Departments had
anticipated.
In the IDR Operations proposed rules,
the Departments proposed several policies aimed at improving communication
between the parties that would make
eligibility determinations less burdensome for certified IDR entities and speed
up the Federal IDR process, as well as
allow the Departments to make eligibility determinations under extenuating circumstances.101 However, these policies, if

99
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.
100
The Departments are providing technical assistance regarding eligibility but are not making eligibility determinations, as, under current regulations, only certified IDR entities may make
eligibility determinations.

Id.
101
88 FR 75744.

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finalized, will take time to implement. In
the interim, the Departments are working
to balance feedback from interested parties asking the Departments to increase the
efficiency of the Federal IDR process and
decrease the backlog of disputes with other
feedback asking the Departments to minimize expenditures and avoid increases to
the administrative fee. The Departments
have also received comments urging them
to shorten the time it takes for payment
determinations to be reached. The Departments continue to believe that some level
of assistance is necessary to address the
high volume of disputes submitted and
the backlog of disputes, due in part to
the closing and reopening of the Federal
IDR process to make necessary systems
updates in light of the TMA III and TMA
IV opinion and orders.
However, after reviewing comments,
the Departments have reconsidered the
amount of estimated costs associated
with pre-eligibility reviews that should be
included in the estimated expenditures to
carry out the Federal IDR process in calendar year 2024. In estimating the expenditures of approximately $70 million in
the IDR Fees proposed rules, the Departments included an increase in costs to
reflect the Departments taking on a greater
role in assisting with eligibility determinations to improve the efficiency of the Federal IDR process.102 Based on comments
received urging the Departments to avoid
increasing the administrative fee, the
Departments will not take on a greater role
in broadly assisting certified IDR entities
with eligibility determinations at this time.
Instead, the Departments will limit their
assistance with eligibility determinations
to more complex disputes, such as disputes where there is missing information
to determine Federal versus State jurisdictions in a State with a specified State law.
This approach will ensure efficient use of
the Departments’ resources by leveraging
the Departments’ assistance and expertise

in handling pre-eligibility reviews for disputes that certified IDR entities may need
to spend more time on, such as disputes
for which information was limited due to
the systems in place when those disputes
were initiated, and will allow certified
IDR entities to focus on moving disputes
through the Federal IDR process. Furthermore, this will allow the Departments to
keep the costs of assisting with eligibility
determinations lower in 2024 such that the
expenditures estimated to be made by the
Departments to carry out the Federal IDR
process are now estimated to be approximately $56.6 million in 2024. The total
estimated expenditures in the IDR Fees
proposed rules included approximately
$20 million for the Departments to assist
with eligibility determinations via conducting research and outreach. The estimated cost of assisting with eligibility
determinations in 2024, as used to calculate the administrative fee as finalized, is
approximately $10 million.
Furthermore, the Departments do not
anticipate that the decision to focus their
assistance with pre-eligibility reviews on
more complex disputes and the revised
administrative fee amount finalized in
these rules will impact the fees certified
IDR entities choose to charge. Given the
backlog of disputes, utilization of the
Federal IDR process strains the current
capacity of certified IDR entities to make
timely determinations. While the Departments’ assistance with eligibility determinations is currently helping to alleviate the
backlog of disputes, certified IDR entities’
operating expenses are not expected to
decrease as a result. If the Departments
are able to decrease their assistance with
eligibility determinations, the costs of
pre-eligibility reviews would decrease,
which would be reflected in the estimated
expenditures used to determine future
administrative fee amounts.
In addition, some commenters disagreed with including the costs of inves-

tigating complaints of non-compliance in
the administrative fee methodology. Commenters asked for clarity in the “investigating relevant complaints” expense
and asserted that “relevant” complaints
beyond the Federal IDR process would be
inappropriate to include in the calculation
of the administrative fee amount. A few of
these commenters suggested that the party
found to be non-compliant should bear the
costs of the investigation and asked the
Departments to publicly report summary
data on these investigations and the costs
covered by non-compliant parties compared to those covered by administrative
fees. One commenter suggested that the
investigation of complaints related to violations of the No Surprises Act should be
funded by a congressional appropriation
as these are largely unrelated to the Federal IDR process.
The Departments clarify that the complaints costs included in the estimated
expenditures in the administrative fee
methodology only include costs associated with receiving and investigating Federal IDR process-related complaints. For
example, such costs include investigating
complaints within the Departments’ jurisdiction regarding the failure of a non-prevailing party to pay the payment determination amount to the prevailing party
within 30 days of the certified IDR entity’s
payment determination as required by the
No Surprises Act.103 Complaints costs do
not include costs for complaints that are
not related to the Federal IDR process,
such as those related to the QPA for patient
cost sharing. Therefore, the Departments
are of the view that those costs are appropriate to include in the administrative fee
methodology and are necessary to ensure
compliance with the Federal IDR process.104
Many commenters suggested that
the Departments consider other funding
sources besides the administrative fee to
fund expenditures. Several commenters

102
While there is an implementation appropriation, the initial appropriation of $500 million in the CAA is finite and only remains available until expended through 2024. Moreover, the Departments note that additional mandatory funding for the Federal IDR process has not been appropriated beyond the initial $500 million made available in the CAA. However, the Departments
cannot rely on budget requests or on appropriations enacted by Congress when calculating this fee. The statute requires the fee to be set at an amount such that the total amount of fees paid
is estimated to be equal to the amount of expenditures estimated to be made by the Departments in carrying out the Federal IDR process.
103
Section 9816(c)(6) of the Code, section 716(c)(6) of ERISA, and section 2799A-1(c)(6) of the PHS Act.
104
While there is an implementation appropriation, the initial appropriation of $500 million in the CAA is finite and only remains available until expended through 2024. Moreover, the Departments note that additional mandatory funding for the Federal IDR process has not been appropriated beyond the initial $500 million made available in the CAA. The Departments are unable to
appropriate this funding themselves, although they have made numerous requests to Congress for additional funding, and therefore this is not a reliable source of Federal IDR process funding.

Bulletin No. 2024–5

587

January 29, 2024

suggested that implementing penalties
could help fund expenditures, including
penalties for submitting ineligible disputes, failing to comply with disclosure
obligations, or delaying the Federal IDR
process. Some commenters suggested
the CAA’s $500 million appropriation to
implement the No Surprises Act should
cover at least a portion of the Departments’ estimated expenditures. One commenter asked for confirmation that the
implementation appropriation has been
exhausted fully and suggested requesting
additional funds from Congress in upcoming budget requests to support the funding
of the Departments’ ongoing implementation. Another commenter asserted that
the administrative fee methodology set
forth in the IDR Fees proposed rules did
not take into account any appropriations
funding.
As required by the No Surprises
Act,105 both parties to a dispute must pay
an administrative fee for participating in
the Federal IDR process. By statute, the
administrative fee amount must be calculated such that the total amount of fees
paid for a year is estimated to be equal to
the amount of expenditures estimated to
be made by the Departments for such year
in carrying out the Federal IDR process.
While the CAA appropriated $500 million to remain available until expended
through 2024 for preparing regulations,
guidance, and reports, collecting data,
conducting audits and enforcement activities,106 and establishing and initially
implementing the No Surprises Act and
Title II Transparency provisions through
calendar year 2024, this finite appropriation is not solely for the Federal IDR process. Additionally, while the Fiscal Year
2024 President’s budget included another
$500 million appropriation request for the
continued implementation of the No Surprises Act and Title II Transparency provisions, the administrative fee amount finalized in these rules must still be consistent

with the statutory requirement to set the
administrative fee amount such that the
total amount of administrative fees paid
is estimated to be equal to the amount of
expenditures estimated to be made by the
Departments in carrying out the Federal
IDR process. As a result, when calculating this fee, the Departments cannot rely
on budget requests or on appropriations
enacted by Congress.
In addition, commenters urged the
Departments to consider strategies to
decrease utilization of the Federal IDR
process, decrease administrative burden,
increase the efficiency of the Federal
IDR process, and ultimately reduce the
cost of administering the Federal IDR
process. Examples of commenters’ suggestions include enforcing disclosure
requirements, requiring plans and issuers
to include remittance advance remark
codes (RARCs) at the time of initial claim
determination, easing batching requirements, disincentivizing bad faith conduct,
making improvements to the Federal IDR
portal, and implementing a required initial payment amount for out-of-network
emergency services. Several commenters suggested that the volume of ineligible disputes and the cost of conducting
eligibility reviews would be reduced or
eliminated if the Departments enforced
disclosure requirements or required plans
and issuers to provide adequate information for providers to determine whether a
claim is eligible for the Federal IDR process. One commenter suggested that plans
and issuers should cover the cost of eligibility reviews when they fail to inform the
provider of eligibility for the Federal IDR
process. Another commenter suggested
that the cost of eligibility reviews should
be assessed to the party that challenges
eligibility as this cost would be avoidable
if the plan or issuer provided sufficient
information. One commenter suggested
that the Departments could reduce the
administrative burden of the Federal IDR

process by contracting with an established
claims processing clearinghouse that currently possesses the capabilities to perform real-time eligibility determinations
to create an in-portal eligibility validation
process.
The Departments continue to consider
improvements to the Federal IDR process
and recently published the IDR Operations
proposed rules,107 which include policies
aimed at reducing the volume of ineligible
disputes, establishing additional disclosure
requirements (such as requiring plans and
issuers to use approved claim adjustment
reason codes (CARCs) and RARCs), incentivizing good faith conduct with respect to
open negotiation and exchange of information, and otherwise improving the Federal
IDR process. Overall, these policies would,
if finalized, support efficiency in Federal
IDR process operations and reduce the cost
of administering the Federal IDR process
in the future.
Recognizing that the cost of certifying
IDR entities is included in the administrative fee methodology, one commenter
sought clarity on how the methodology
considers efficiencies gained from certifying more IDR entities to make payment
determinations and therefore reduce the
backlog.
The Departments note that the benefits of certifying new IDR entities will
be achieved over time, as new certified
IDR entities acclimate to the process and
increase the speed at which they move
disputes through the Federal IDR process.
As efficiencies in the Federal IDR process
are adopted over time, the expenditures
required to carry out the Federal IDR process could decrease, exerting downwards
pressure on the administrative fee amount.
If any of these situations results in changes
to the data used to calculate the administrative fee amount, the Departments
intend to take these changes into consideration when establishing the administrative
fee amount in the future.

Section 9816(c)(8)(A) of the Code, section 716(c)(8)(A) of ERISA, and section 2799A-1(c)(8)(A) of the PHS Act.
As previously explained in the preamble to these final rules, the Departments may conduct random or risk-based QPA audits. The Departments consider it appropriate to include some of the
costs of conducting risk-based QPA audits resulting from complaints filed by providers, facilities, or providers of air ambulance services alleging that the QPA was inaccurate as expenditures
made in carrying out the Federal IDR process, and therefore include the costs of conducting these audits in estimating the expenditures made by the Departments in carrying out the Federal
IDR process. Other audit costs, such as the QPA audits conducted in connection with Department of Labor, OPM, or Department of Treasury investigations; audits conducted randomly; or
audits conducted in response to complaints from consumers regarding QPAs may be funded using other appropriations, as applicable.
107
88 FR 75744.
105
106

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d. Administrative Fee Methodology –
Other Comments
The Departments sought comments
on whether, when calculating the administrative fee amount in future years, they
should apply an inflationary adjustment,
such as the consumer price index for all
urban consumers (CPI–U), to the amount
of estimated expenditures to be made by
the Departments in carrying out the Federal IDR process. A few commenters supported using an inflationary adjustment,
such as the CPI-U, to adjust the administrative fee amount in future years. Other
commenters opposed this approach, stating that it would not necessarily correlate
with the Departments’ expenditures to
operate the Federal IDR process and may
not align with the established methodology of dividing the Departments’ estimated expenditures by the estimated total
number of administrative fees to be paid.
Another commenter stated that this proposal would be unnecessary if the Departments finalize the proposal to establish the
administrative fee amount more or less
frequently than annually. Finally, another
commenter asked the Departments to
revisit this proposal when data are more
predictable after implementing planned
improvements to the Federal IDR process.
Upon consideration of the comments,
the Departments are not finalizing the use
of an inflationary adjustment, such as the
CPI-U, to adjust the administrative fee
amount in future years. The Departments
agree with commenters that the CPI-U
may not correlate with projected increases
in the Departments’ estimated expenditures to carry out the Federal IDR process
and therefore using it could be inconsistent with the statute.
Several commenters urged the Departments to improve the Federal IDR process before increasing the administrative
fee amount by decreasing the backlog,
enforcing timely payment, and holding
all parties accountable to the regulatory
requirements. Some commenters recommended maintaining the current administrative fee amount until there is stability in
the Federal IDR process and more data are

108
109

available to accurately forecast long-term
costs. A few commenters suggested that
the Departments modify the administrative fee amount in future years to make up
for any shortfall or surplus created by the
finalized administrative fee amount.
As previously mentioned, the Departments continue to consider improvements to the Federal IDR process; however, implementing these improvements
would increase the costs of carrying out
the Federal IDR process in the short term
and would take time to operationalize. As
previously mentioned, the Departments
proposed policies in the IDR Operations
proposed rules aimed to improve the
overall efficiency and operations of the
Federal IDR process.108 The Departments
were unable to propose those policies in
the IDR Fees proposed rules because they
are much more comprehensive than the
fee-related policies proposed in the IDR
Fees proposed rules and would require
more time to develop and implement, if
finalized. There is an urgency to publish
these final rules due to the need to sufficiently fund the Federal IDR process in
2024, because, as explained above, the
current $50 administrative fee amount is
insufficient to provide total administrative
fees that are estimated to be equal to the
expenditures estimated to be made by the
Departments in carrying out the Federal
IDR process, as required by the No Surprises Act.109
e. Administrative Fee Amount and Impact
Many commenters opposed the proposed $150 per party per dispute administrative fee amount and stated that it would
make the Federal IDR process cost-prohibitive to pursue for many providers,
especially small providers, rural providers, independent practices, and certain
medical specialties, such as psychiatry,
emergency medicine, radiology, and anesthesiology. Some commenters requested
that the Departments analyze how the proposed administrative fee amount would be
cost-prohibitive for providers and would
deter and limit dispute resolution for small
providers. A few commenters asserted

that the administrative fee amount would
unfairly favor plans and issuers over providers in the Federal IDR process. One
commenter recommended against using a
methodology to calculate the administrative fee amount that did not consider the
increased financial burdens on providers
compared to plans and issuers. Another
commenter stated that the proposed
administrative fee amount prioritizes the
interest of certified IDR entities and the
Departments in covering their costs at the
expense of parties’ access to the Federal
IDR pro

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Airs%3Ae3eb1b620b602201. Public record. Not legal advice.