No Surprises Act Independent Dispute Resolution (IDR) Process Data Analysis for the First Half of 2023
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No Surprises Act Independent Dispute
Resolution (IDR) Process Data Analysis for
the First Half of 2023
May 2, 2024
Congressional Research Service
https://crsreports.congress.gov
R48058
SUMMARY
No Surprises Act Independent Dispute
Resolution (IDR) Process Data Analysis for the
First Half of 2023
R48058
May 2, 2024
Ryan J. Rosso
Analyst in Health Care
Financing
The No Surprises Act (NSA), part of the Consolidated Appropriations Act, 2021 (P.L. 116-260),
established various consumer protections related to surprise billing—that is, circumstances in
Wen W. Shen
which individuals receive large, unexpected medical bills when they are unknowingly, and
Legislative Attorney
potentially unavoidably, treated by out-of-network (OON) providers. The law generally
recognizes surprise billing circumstances to include OON emergency services, OON
nonemergency services provided during a visit at an in-network facility, and OON air ambulance
services. In those situations, the NSA generally limits the amount consumers pay for care and
specifies a methodology to be used to determine how much insurers must pay OON providers for care if the parties cannot
agree on the payment amount. Under this methodology, either the insurer or the provider may initiate an independent dispute
resolution (IDR) process before a private arbitrator (i.e., an IDR entity). The IDR entity selects between the parties’ payment
offers after considering a list of statutory factors, including the qualifying payment amount (QPA) for an item or service,
defined generally as an insurer’s 2019 median in-network rate for the item or service, indexed for inflation.
In February 2024, the Departments of Health and Human Services, Labor, and the Treasury publicly made available certain
data about the first two quarters of IDR operations in calendar year 2023. In general, the data show a continued increase in
the use of the IDR process since it first became available in 2022. A total of 288,810 IDR disputes were initiated in the first
two quarters of 2023, well above the total number of disputes initiated in all of 2022 (roughly 200,000 disputes). Providers
initiated nearly all of the disputes in the first half of 2023 (over 99%). Providers with evidence of private equity affiliation
were particularly heavy utilizers of the IDR process; those providers initiated over 70% of the disputes involving OON
emergency/nonemergency services in each quarter and over 65% of the disputes involving OON air ambulance services in
each quarter.
The number of disputes rose over this period despite an increase in the administrative fee parties had to pay to access the IDR
process (an increase from $50 to $350 per party per dispute during this period) and the fact that the median time to
determination for a dispute involving OON emergency/nonemergency services was more than three months. One factor that
may have contributed to providers’ willingness to use the IDR process during this period is providers’ general success with
the process. Providers prevailed in a great majority of the payment determinations (approximately 77%), and a similar
majority of selected offers (approximately 75%) were for an amount greater than the QPA. Emergency department services
were the subject of the greatest number of payment determinations (over half of all determinations), and the median
prevailing offer in those determinations was over two times the QPA.
The volume of disputes and difficulties in determining dispute eligibility continues to present challenges to the federal IDR
process, resulting in payment determinations often being made beyond statutory and regulatory timelines. However, there are
signs of improvement. As examples, over twice as many disputes were closed in the first half of 2023 than in all of 2022
(134,036 disputes compared with 54,821 disputes); a smaller percentage of disputes were found to be ineligible during the
first half of 2023 than in 2022 (22% of closed disputes in Q1 and Q2 of 2023 compared with 45% of closed disputes in
2022); and the percentage of disputes determined within statutory and regulatory timelines increased for both OON
emergency/nonemergency service disputes and OON air ambulance service disputes from quarter 1 to quarter 2 of 2023 (10%
to 17% and 7% to 35%, respectively).
As the federal IDR process matures, continued analysis of future data is necessary to answer several open questions,
including whether and how insurers respond to their general lack of success in the first half of 2023 and whether that
response, in turn, alters provider behavior and affects use of the federal IDR process. Subsequent data may provide insights
into any changes in IDR process utilization, the relative success rates of providers versus insurers, and whether such
variations correspond to any changes or trends in the prevailing offer amounts.
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No Surprises Act IDR Process Data Analysis for the First Half of 2023
Contents
Overview ......................................................................................................................................... 1
Data Related to Dispute Initiation ................................................................................................... 2
How Many Disputes Were Initiated? ........................................................................................ 2
Who Were the Parties Initiating Disputes? ................................................................................ 2
Where Were the Disputes Initiated? .......................................................................................... 4
Data Related to Dispute Resolution ................................................................................................ 5
How Were Disputes Resolved? ................................................................................................. 5
How Long Did It Take for IDR Entities to Make Payment Determinations? ........................... 7
Who Were the Prevailing Parties in Disputes, and How Do the Payment
Determinations Compare with the Qualifying Payment Amount?....................................... 10
How Do the Payment Determinations Compare with the IDR Process Administrative
Fees? .................................................................................................................................... 12
Initial Observations and Future Considerations ............................................................................ 12
Figures
Figure 1. Parties Initiating the Federal IDR Process in the First Half of 2023................................ 3
Figure 2. OON Emergency/Nonemergency Service and Air Ambulance Service Disputes
by States in the First Half of 2023................................................................................................ 5
Figure 3. Federal IDR Process Payment Determination Outcomes
in the First Half of 2023 ............................................................................................................... 7
Figure 4. Number of Determinations for OON Emergency/Nonemergency Disputes and
OON Air Ambulance Disputes, Grouped by Business Days to Determination............................ 9
Figure 5. Prevailing Party in IDR Payment Determinations ......................................................... 10
Figure 6. Number of Payment Determinations by Median QPA Percentage for Each
Specialty in Q1 and Q2 of 2023 .................................................................................................. 11
Tables
Table 1. Median Number of Business Days to Determination for OON
Emergency/Nonemergency Disputes, by Quarter, State Bifurcation, and Dispute Type ............. 8
Table A-1. Top 10 Initiating Parties or Their Representatives for Disputes Involving OON
Emergency/Nonemergency Services .......................................................................................... 14
Table A-2. Top 10 Initiating Parties or Their Representatives for Disputes Involving OON
Ambulance Services ................................................................................................................... 15
Appendixes
Appendix. List of Top Initiating Parties for Q1 and Q2 of 2023 ................................................... 14
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No Surprises Act IDR Process Data Analysis for the First Half of 2023
Contacts
Author Information........................................................................................................................ 16
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No Surprises Act IDR Process Data Analysis for the First Half of 2023
Overview
The No Surprises Act (NSA), part of the Consolidated Appropriations Act, 2021 (P.L. 116-260),
established various consumer protections related to surprise billing—that is, circumstances in
which individuals receive large, unexpected medical bills when they are unknowingly, and
potentially unavoidably, treated by out-of-network (OON) providers.1 The law generally
recognizes surprise billing circumstances to include OON emergency services, OON
nonemergency services provided during a visit at an in-network facility, and OON air ambulance
services. In those situations, the NSA generally limits the amount consumers pay for care and
specifies a methodology to be used to determine how much insurers must pay OON providers for
care.2
Under the federal payment methodology, when an insurer and an OON provider cannot agree on
the relevant payment amount, either party may initiate an independent dispute resolution (IDR)
process before a private arbitrator, referred to as an IDR entity.3 In a process commonly described
as “baseball-style” arbitration, the IDR entity selects between the parties’ payment offers after
considering a list of statutory factors. The statutory factors include (1) the item’s or service’s
qualifying payment amount (QPA), defined as an insurer’s 2019 median in-network rate for a
particular item or service provided by a provider in the same or similar specialty, indexed for
inflation, and (2) information related to specified “additional circumstances,” including the
provider’s level of training, experience, and quality and outcome measurements.4 This
methodology does not apply in all situations. If a state has its own surprise billing law that
pertains to a given plan type, provider type, and service, the state law methodology would apply.
In addition, if a state has an all-payer model agreement, the amount designated under the
agreement would apply.5
The NSA also directs the Department of Health and Human Services to publish, on a quarterly
basis, various information about the implementation of the IDR process.6 This information
includes, among other things, the total number of disputes initiated; the sizes and types of
organizations that were party to a dispute; and details of each payment determination, including a
description of the items or services disputed, the identities of the disputing parties, the payment
offers submitted by each party, and the final payment determination. On February 15, 2024, the
Departments of Health and Human Services, Labor, and the Treasury (hereinafter, the
Departments) released the first two public-use files (PUFs), which contain data from the first two
quarters of IDR operations in calendar year 2023.7 The Departments also published certain
federal IDR supplemental tables that summarize the relevant data to provide additional
1 For more information on surprise billing requirements included in the No Surprises Act (part of the Consolidated
Appropriations Act, 2021 [P.L. 116-260]), see CRS Report R46856, Surprise Billing in Private Health Insurance:
Overview of Federal Consumer Protections and Payment for Out-of-Network Services.
2 For ease of reading, this product uses the term insurer to collectively refer to both health plans and issuers.
3 42 U.S.C. §300gg-111(c). For more information on the federal independent dispute resolution (IDR) process, see CRS
In Focus IF12073, Surprise Billing: Independent Dispute Resolution Process.
4 42 U.S.C. §300gg-111(c)(5)(C).
5 42 U.S.C. §300gg-111(a)(3)(K).
6 42 U.S.C. §300gg-111(c)(7).
7 Centers for Medicare & Medicaid Services (CMS), Independent Dispute Resolution Reports, https://www.cms.gov/
nosurprises/policies-and-resources/reports.
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transparency. This report provides an overview and analysis of the data contained in the PUFs and
supplemental tables.8
Data Related to Dispute Initiation
How Many Disputes Were Initiated?
A total of 288,810 federal IDR disputes were initiated in the first two quarters of 2023 (January 1,
2023, through June 30, 2023). Of this total, 274,432 disputes (approximately 95%) involved
OON emergency/nonemergency services and 14,378 disputes (approximately 5%) involved OON
air ambulance services.
These half-year totals were well above annual dispute levels initially estimated by the
Departments in an October 2021 interim final rule implementing the IDR process (17,333 OON
emergency/nonemergency services and 4,899 OON air ambulances services).9 The number of
disputes initiated in the first two quarters of 2023 also was greater than the total number of
disputes initiated in all of 2022 (189,977 OON emergency/nonemergency services and 10,135
OON air ambulance services), the year the NSA became effective, showing continued increases in
IDR process utilization.10
In November 2023, the Centers for Medicare & Medicaid Services (CMS) identified several
factors that are “likely contributing” to the high volume of disputes. These factors were (1)
providers’ view that they were incentivized to use the IDR process because insurers made initial
payments based on “artificially low” QPAs; (2) disputing parties’ uncertainty over how disputes
would be resolved in the IDR process; (3) parties’ failure to meaningfully engage in open
negotiations that precede the IDR process; (4) confusion stemming from court rulings that
necessitated multiple temporary shutdowns of the federal IDR process and the issuance of new
guidance, rules, and system updates; and (5) confusion over which disputes were eligible for the
federal IDR process.11
Who Were the Parties Initiating Disputes?
Although both insurers and providers/facilities may initiate the IDR process if the parties cannot
reach an agreement during open negotiation, providers and facilities were almost always the
8 In general, this report categorizes data for the three types of surprise billing situations eligible for the IDR process as
(1) OON emergency services and OON nonemergency services provided during a visit at an in-network facility, and (2)
OON air ambulance services. This approach, which generally combines the data for OON emergency services and
OON nonemergency services, is consistent with how CMS presents the data in the public-use files (PUFs) and
supplemental tables.
9 Office of Personnel Management (OPM); Department of the Treasury, Internal Revenue Service (IRS); Department of
Labor, Employee Benefits Security Administration (EBSA); Department of Health and Human Services (HHS), CMS,
“Requirements Related to Surprise Billing; Part II,” 86 Federal Register 55980, October 7, 2021.
10 HHS, Department of Labor, and Department of the Treasury, Initial Report on the Independent Dispute Resolution
(IDR) Process April 15-September 30, 2022, pp. 7-8, https://www.cms.gov/files/document/initial-report-idr-april-15september-30-2022.pdf (hereinafter, HHS, Department of Labor, and Department of the Treasury, Initial Report on the
IDR Process); and HHS, Department of Labor, and Department of the Treasury, Partial Report on the Independent
Dispute Resolution (IDR) Process October 1-December 31, 2022, p. 8, https://www.cms.gov/files/document/partialreport-idr-process-octoberdecember-2022.pdf (hereinafter, HHS, Department of Labor, and Department of the
Treasury, Partial Report on the IDR Process).
11 OPM; Department of the Treasury, IRS; Department of Labor, EBSA; HHS, CMS, “Federal Independent Dispute
Resolution Operations,” 88 Federal Register 75744, November 3, 2023 (hereinafter, 88 Federal Register 75744).
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No Surprises Act IDR Process Data Analysis for the First Half of 2023
initiating parties during the first half of 2023. As shown in Figure 1, for both categories of OON
items or services, providers and facilities initiated over 99% of the disputes.
Figure 1. Parties Initiating the Federal IDR Process in the First Half of 2023
Figure is interactive in the HTML version of this report.
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 1 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 1 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network.
Table A-1 and Table A-2 show the top 10 initiating parties or their representatives for the
disputes initiated during the first half of 2023. For OON emergency/nonemergency service
disputes, the top two initiating parties (Team Health and SCP Health) accounted for roughly 50%
of the disputes in both Q1 and Q2. In particular, Team Health—the most frequently initiating
party—initiated over a quarter of disputes in both Q1 and Q2. For OON air ambulance service
disputes, the data show even more concentration: the three most frequently initiating parties
(Global Medical Response, Air Methods, and Phi Air Medical) accounted for over 80% of all
disputes in both Q1 and Q2, and the top initiating party (Global Medical Response) accounted for
over 45% of all disputes in both Q1 and Q2.
Entities that had evidence of private equity affiliations were among the top initiating parties for
both OON emergency/nonemergency service and OON air ambulance service disputes for the
first half of 2023.12 Provider entities with evidence of private equity affiliations comprised 5 of
the top 10 initiating entities and initiated over 70% of all disputes involving OON
12 Private equity refers to a type of private fund that pools money from certain types of investors and invests the money
on behalf of the fund. There is no single authoritative resource that identifies entities that are affiliated with, or owned
by, private equity firms, so private equity affiliation was identified through a compilation of resources that may not be
comprehensive. In this context, private equity affiliation indicates private equity ownership or investment. For more
information about private equity and the concerns some observers have raised regarding the involvement of private
equity in health care at large, see “Industry-Specific Debates,” in CRS Report R47053, Private Equity and Capital
Markets Policy, by Eva Su.
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emergency/nonemergency services in each quarter. With respect to OON air ambulance services,
entities with evidence of private equity affiliations comprised 4 of the top 10 initiating entities
and initiated over 65% of all disputes involving OON air ambulance services in each quarter. In
an analysis of IDR process data for 2022, the U.S. Government Accountability Office found that
in 2022, a similar number of entities with evidence of private equity affiliations initiated
approximately 46% of all disputes involving OON emergency/nonemergency services and
approximately 66% of all disputes involving OON air ambulance services.13 Data from the first
half of 2023 therefore show a significant growth in the proportion of OON
emergency/nonemergency service disputes initiated by entities with private equity affiliations.
Among non-initiating parties for OON emergency/nonemergency service disputes,
UnitedHealthcare was the most common non-initiating party, constituting over 35% of all
disputes in both Q1 and Q2 of 2023. Among non-initiating parties for OON air ambulance service
disputes, Multiplan was the only non-initiating party to be involved in at least 10% of disputes in
either Q1 or Q2.
Where Were the Disputes Initiated?
Figure 2 shows the number of disputes initiated in each state in the first half of 2023. In both Q1
and Q2, over half of all disputes involving OON emergency/nonemergency services were
initiated in the same five states: Arizona, Florida, Georgia, Tennessee, and Texas. Of these five
states, three (Florida, Georgia, and Texas) are commonly referred to as bifurcated states, meaning
states in which some OON emergency/nonemergency services are subject to the federal IDR
process and others are subject to a specified state law or all-payer model agreement.14 In total,
over 60% of all disputes initiated in the first half of 2023 occurred in one of the 22 bifurcated
states, which are highlighted in outlines in Figure 2. Disputes initiated in bifurcated states
generally require additional review by IDR entities to determine dispute eligibility in the federal
IDR process.15
13 U.S. Government Accountability Office (GAO), Roll Out of Independent Dispute Resolution Process for Out-of-
Network Claims Has Been Challenging, GAO-24-106335, December 2023, pp. 44, 46, https://www.gao.gov/assets/
870/864587.pdf. Hereinafter, GAO, Roll Out of Independent Dispute Resolution Process.
14 For more information on bifurcated states, see CMS, “Chart Regarding Applicability of the Federal Independent
Dispute Resolution Process in Bifurcated States,” https://www.hhs.gov/guidance/sites/default/files/hhs-guidancedocuments/Applicability-Federal-IDR-Bifurcated-States.pdf.
15 GAO, Roll Out of Independent Dispute Resolution Process.
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Figure 2. OON Emergency/Nonemergency Service and Air Ambulance Service
Disputes by States in the First Half of 2023
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 7 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 7 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network. Bifurcated states are states in which
some OON services are subject to the federal IDR process and others are subject to a specified state law or allpayer model agreement. Bifurcated states include Alaska, California, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Maine, Maryland, Michigan, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, Ohio, Texas, Virginia, and Washington.
Disputes involving OON air ambulance services were less concentrated geographically relative to
disputes involving OON emergency/nonemergency services. For OON air ambulance services,
bifurcation is not an issue, because states generally do not have a state law or all-payer model
agreement that applies to such services.16
Data Related to Dispute Resolution
How Were Disputes Resolved?
During the first half of 2023, IDR entities closed 134,036 disputes, 124,827 of which were for
OON emergency/nonemergency services and 9,209 of which were for OON air ambulance
16 CMS, “Chart for Determining the Applicability for the Federal Independent Dispute Resolution (IDR) Process,”
https://www.cms.gov/files/document/caa-federal-idr-applicability-chart.pdf.
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services. This total is more than two times greater than the total number of disputes closed in
2022 (54,821).17
As shown in Figure 3, nearly two-thirds (approximately 63%) of closed disputes in the first half
of 2023 resulted in payment determinations (83,868). A little over one-fifth of the closed disputes
(29,669, or approximately 22%) were found to be ineligible for the federal IDR process. A dispute
can be found ineligible for various reasons, including because a state law or all-payer model
agreement in bifurcated states should apply, the initiating party did not comply with IDR process
timelines, the parties did not complete the open negotiation period, and/or the initiating party did
not correctly batch or bundle the claims. (Batched claims refer to situations in which multiple
qualified services are considered jointly as part of one IDR determination; bundled claims refer to
situations in which a provider or facility bills for multiple items or services under a single service
code.)
The percentage of disputes found to be ineligible in the first half of 2023 was substantially less
than the percentage of ineligible disputes in 2022 (22% in Q1 and Q2 of 2023 versus 45% in
2022). The Departments attribute this decrease to IDR process improvements and greater
familiarity with the IDR process among disputing parties.18
17 HHS, Department of Labor, and Department of the Treasury, Initial Report on the IDR Process, p. 8; and HHS,
Department of Labor, and Department of the Treasury, Partial Report on the IDR Process, p. 8.
18 HHS, Department of Labor, and Department of the Treasury, Supplemental Background on Federal Independent
Dispute Resolution Public Use Files January 1, 2023-June 30, 2023, p. 3, https://www.cms.gov/files/document/federalidr-supplemental-background-2023-q1-2023-q2.pdf. Hereinafter, HHS, Department of Labor, and Department of the
Treasury, Supplemental Background.
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Figure 3. Federal IDR Process Payment Determination Outcomes
in the First Half of 2023
Figure is interactive in the HTML version of this report.
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 5 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 5 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network. “Other” indicates disputes that were
withdrawn by disputing parties, closed due to outside settlement between the disputing parties, or closed for
administrative reasons. A dispute can be found ineligible for various reasons, including because a state law or allpayer model agreement in bifurcated states should apply, the initiating party did not comply with IDR process
timelines, the parties did not complete the open negotiation period, and/or the initiating party did not correctly
batch or bundle the claims.
How Long Did It Take for IDR Entities to Make Payment
Determinations?
For disputes that resulted in a payment determination in the first half of 2023, Figure 4 illustrates
the number of days between the initial selection of the IDR entity and when the determination
was sent to the parties and the dispute was closed.19 Under the statute and implementing
regulations, these two steps generally are required to take place within 33 business days (up to 3
business days for a selected IDR entity to attest there is no conflict of interest and to determine
whether the federal process applies, and up to 30 business days to make the payment
determination).20 This timeline, however, can be extended for specified reasons (e.g., due to
matters beyond the parties’ control).21 As shown in Figure 4, a majority of payment
19 HHS, Department of Labor, and Department of the Treasury, “CMS Data Disclaimer–User Agreement Federal
Independent Dispute Resolution (IDR) Public Use File and Federal IDR Supplemental Tables,” p. 3,
https://www.cms.gov/files/document/federal-idr-puf-data-disclaimer-user-agreement.pdf#page=3.
20 42 U.S.C. §300gg-111(c)(5), 45 C.F.R. §149.510(c)(1)(v), and 45 C.F.R. §149.510(c)(4)(ii).
21 45 C.F.R. §149.510(g).
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determinations made during the first half of 2023 were made outside the 33-business day period.
The median number of days to payment determination increased for OON
emergency/nonemergency service disputes from 52 business days in Q1 to 71 business days in
Q2 and decreased for OON air ambulance services from 47 business days in Q1 to 41 business
days in Q2.
At the same time, the percentages of OON emergency/nonemergency service disputes and OON
air ambulance service disputes determined in 33 business days or fewer increased between Q1
and Q2 (10% to 17% and 7% to 35%, respectively). This increase indicates that a greater
percentage of disputes may have met the statutory timeline in Q2 than in Q1 of 2023.
Determinations made outside of the 33-business day period do not necessarily indicate that the
IDR entities did not meet appropriate deadlines. For example, certain extensions may be provided
to IDR entities in instances where the IDR entity needs additional information to determine a
dispute’s eligibility. In addition, IDR entities were directed to pause payment determinations from
February 6, 2023, through March 17, 2023, in response to a February 2023 court decision.22
The Departments have stated that the primary cause of determination delays is the complexity
involved in determining dispute eligibility.23 Two factors have been identified as having the
potential to complicate the eligibility determination: (1) whether a state law or all-payer model
agreement in bifurcated states should apply instead of the federal IDR process and (2) whether
disputes involving multiple items and services have been appropriately batched or bundled. For
Q1 OON emergency/nonemergency service disputes, these factors did not appear to significantly
impact the median total number of days to a determination. In Q2, however, the median number
of days to resolve a batched dispute involving OON emergency/nonemergency services provided
in a bifurcated state was nearly 20 business days more than the median number of days for single
disputes in a non-bifurcated state, as shown in Table 1. The Departments have recently proposed
a rule that seeks to further improve the eligibility determination process.24
Table 1. Median Number of Business Days to Determination for OON
Emergency/Nonemergency Disputes, by Quarter, State Bifurcation, and Dispute
Type
(Q1 and Q2 of 2023)
Q1
Q2
Batched
Bundled
Single
Batched
Bundled
Single
Bifurcated
State
51
47
51
87
73
73
Non-bifurcated
State
55
50
52
77
73
68
Source: CRS analysis of the Departments of Health and Human Services, Labor, and the Treasury, “Federal IDR
Public Use File (PUF) for 2023, Q1” and “Federal IDR PUF for 2023, Q2.” Data as of February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network. Bifurcated states are states in which
some OON services are subject to the federal IDR process and others are subject to a specified state law or allpayer model agreement. Batched disputes are disputes in which multiple qualified services are considered jointly
22 CMS, “Payment Disputes Between Providers and Health Plans,” https://www.cms.gov/nosurprises/help-resolve-
payment-disputes/payment-disputes-between-providers-and-health-plans. For more information on NSA litigation, see
CRS Legal Sidebar LSB11036, Overview of Selected No Surprises Act Litigation.
23 HHS, Department of Labor, and Department of the Treasury, Initial Report on the IDR Process, p. 8.
24 88 Federal Register 75744.
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as part of one IDR determination. If a batched dispute contained services from both bifurcated states and nonbifurcated states, such dispute was treated as a bifurcated, batched dispute. Bundled disputes are disputes in
which a provider or facility billed for multiple items or services under a single service code.
Figure 4. Number of Determinations for OON Emergency/Nonemergency Disputes
and OON Air Ambulance Disputes, Grouped by Business Days to Determination
(Q1 and Q2 of 2023)
Sources: CRS analysis of the Departments of Health and Human Services, Labor, and the Treasury, “Federal
IDR Public Use File (PUF) for 2023, Q1” and “Federal IDR PUF for 2023, Q2.” Data as of February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network. Batched disputes are disputes in which
multiple qualified services are considered jointly as part of one IDR determination. Bundled disputes are disputes
in which a provider or facility billed for multiple items or services under a single service code.
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Who Were the Prevailing Parties in Disputes, and How Do the
Payment Determinations Compare with the Qualifying Payment
Amount?
For disputes that resulted in a payment determination during the first half of 2023, Figure 5
illustrates the determination outcome. Providers and facilities were the prevailing party—that is,
had their offers selected—in approximately 77% of OON emergency/nonemergency service and
OON air ambulance service determinations during the first half of 2023. Insurers, in contrast,
were the prevailing party in approximately 23% of determinations. A small number of disputes
resulted in split decisions, which refer to batched disputes where each party prevailed in an equal
number of batched dispute determinations.
Figure 5. Prevailing Party in IDR Payment Determinations
Figure is interactive in the HTML version of this report.
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 12 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 12 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network.
In terms of the offer amounts that were selected, approximately 75% of the payment
determinations reached during the first half of 2023 resulted in the selection of a prevailing offer
that is greater than the QPA at issue (i.e., greater than, generally, the 2019 median in-network rate
for the item or service at issue, indexed for inflation). The Departments have observed that
insurers often benchmark their offers to the QPA.25 Relatedly, researchers found that when
insurers were the prevailing party in Q2 of 2023, the median payment determination was 100% of
25 HHS, Department of Labor, and Department of the Treasury, Supplemental Background, p. 4.
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the QPA. In contrast, when providers were the prevailing party in Q2 of 2023, the median
payment determination was 322% of the QPA.26
Figure 6 illustrates, for each quarter, the medical specialties involved in the disputes that resulted
in payment determinations and shows the median prevailing offer for the disputes involving that
specialty as a percentage of the QPA. For both quarters, emergency department services were the
subject of the greatest number of payment determinations (over half of all determinations), and
the median prevailing offer in those determinations was over two times the QPA.
Among service categories with at least 500 payment determinations in at least one quarter, the
median prevailing offer for the dispute generally varied between 150% and 350% of the
corresponding QPA. These amounts were mostly stable between Q1 and Q2 of 2023, with the
exception of surgery determinations—the median payment determination for these services
increased from 271% of the QPA to 567% of the QPA.
Figure 6. Number of Payment Determinations by Median QPA Percentage for Each
Specialty in Q1 and Q2 of 2023
Figure is interactive in the HTML version of this report.
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 14 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 14 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; QPA = qualifying payment amount. Interactive figure allows users
to see the specialty that corresponds with each dot.
26 Jack Hoadley and Kevin Lucia, Report Shows Dispute Resolution Process in No Surprises Act Favors Providers, The
Commonwealth Fund, March 1, 2024, https://www.commonwealthfund.org/blog/2024/report-shows-disputeresolution-process-no-surprises-act-favors-providers.
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How Do the Payment Determinations Compare with the IDR
Process Administrative Fees?
In the first two quarters of 2023, each party participating in the federal IDR process had to pay a
$350 administrative fee in each dispute, whether the dispute involved a single claim or batched
claims.27 This amount reflects an increase from the $50 administrative fee in effect in 2022. In the
first half of 2023, a little over one-fifth of the payment determinations involved items or services
with a QPA that was less than $100; the rest involved items or services with a QPA that was $100
or more. Separately, for both Q1 and Q2 of 2023, over half of the payment determinations
involved items or services with a QPA between $100 and $500. The median prevailing offer for
determinations in this range was roughly 250% of the QPA in both quarters. As an example, if a
provider initiated the IDR process for an item or service that had a QPA of $300, and the Q2
median prevailing offer (252% of the QPA) applied, the determination would result in a provider
payment of $756. After accounting for the $350 administrative fee, this results in a net gain of
$406, or $106 more than the QPA amount.
The $350 administrative fee was the subject of a legal challenge.28 In August 2023, this fee
amount was vacated by a district court, and the Departments reverted the administrative fee to
$50 per party for disputes initiated on or after August 3, 2023.29 In December 2023, the
Departments issued a final rule that set the administrative fee at $115 per party per dispute, for
disputes initiated on or after January 22, 2024.30 This reduction in fee amount from $350 may
increase the total number of IDR disputes, as some providers have indicated they have not
submitted claims to the IDR process because the claim amounts were less than the administrative
fee.31
Initial Observations and Future Considerations
Overall, the data about the federal IDR process from the first half of 2023 show a continued
increase in the use of this process, particularly by providers that are affiliated with private equity
firms. Use of the IDR process rose despite an increase in the administrative fee (from $50 to $350
per party per dispute during this period) and the fact that the median time to determination for a
dispute involving OON emergency/nonemergency services was over three months.
One factor that may have contributed to providers’ willingness to use the IDR process during this
period is providers’ general success with the process. Providers were the prevailing party in a
great majority of the payment determinations, and a similar majority of selected offers were for
27 CMS, “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 23, 2023, https://www.cms.gov/cciio/
resources/regulations-and-guidance/downloads/amended-cy2023-fee-guidance-federal-independent-dispute-resolutionprocess-nsa.pdf.
28 For more information about this and other legal challenges related to the NSA, see CRS Legal Sidebar LSB11036,
Overview of Selected No Surprises Act Litigation.
29 Tex. Med. Assoc. v. Dep’t of Health & Human Servs., No. 6:23-cv-59, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023).
30 Department of the Treasury, IRS; Department of Labor, EBSA; HHS, CMS, “Federal Independent Dispute
Resolution (IDR) Process Administrative Fee and Certified IDR Entity Fee Ranges,” 88 Federal Register 88494,
December 21, 2023.
31 GAO, Roll Out of Independent Dispute Resolution Process, p. 24.
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an amount greater than the QPA, which providers have asserted was often the amount paid by
insurers as initial payments.32
The volume of disputes, which is well above initial expectations, and difficulties in determining
dispute eligibility continue to present challenges to the federal IDR process, often resulting in
payment determinations made beyond the statutory and regulatory timelines.33 For OON
emergency/nonemergency service disputes, the median number of days it took to reach a
determination increased substantially from Q1 to Q2 of 2023, and the increase was more
pronounced for disputes with factors potentially complicating eligibility review. However, there
were some signs of improvement during the first half of 2023. As examples, over twice as many
disputes were closed in the first half of 2023 than in all of 2022; fewer disputes were found to be
ineligible during the first half of 2023 than in 2022; and the percentage of disputes determined
within statutory and regulatory timelines increased for both OON emergency/nonemergency
service disputes and OON air ambulance services dispute from Q1 to Q2 of 2023.
Since the period covered by the data, the Departments have modified or proposed to modify the
federal IDR process, including setting the administrative fee at $115 per party and adding
requirements to promote open negotiation and improve the eligibility determination process.
Pending litigation—for example, regarding how insurers should calculate the QPA—also may
affect implementation of the federal IDR process. Analysis of data from the second half of 2023
and calendar year 2024 may shed light on whether and how these changes, if implemented, affect
the process.34
Data from the second half of 2023 and 2024 also may provide insights into how insurers respond
to their limited success in the first half of 2023. The baseball-style arbitration structure of the IDR
process creates a dynamic system that can change depending on how insurers and providers
approach their offers and modify such approaches over time. For example, if insurers increase
their IDR payment offers and experience more success, that could impact provider IDR payment
offers and/or the extent to which providers seek to utilize the process. Changes in insurer and
provider behavior in the initial payment and open negotiations, which both take place prior to the
IDR process, also could alter IDR process utilization.
Key questions for future analysis include whether subsequent data reflect changes in IDR process
utilization, the relative success rates of providers versus insurers, and whether such variations
correspond to changes in the number of payment determinations and prevailing offer amounts.
How these aspects of the IDR process evolve could have broader implications over time in
provider network participation, affect in-network reimbursement rates for these types of services,
and could have an impact on health insurance premiums over time.
32 88 Federal Register 75744.
33 In addition, IDR entities were directed to pause payment determinations from February 6, 2023, through March 17,
2023, in response to a February 2023 court decision.
34 Certain aspects of the IDR process were paused for much of Q3 and Q4 of 2023 as a result of legal challenges. For
more information about legal challenges related to the NSA, see in CRS Legal Sidebar LSB11036, Overview of
Selected No Surprises Act Litigation.
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Appendix. List of Top Initiating Parties for Q1 and
Q2 of 2023
Table A-1. Top 10 Initiating Parties or Their Representatives for Disputes Involving
OON Emergency/Nonemergency Services
(Q1 and Q2 of 2023)
Q1
Q2
Total
Disputes
Initiated
Percentage
of Disputes
Initiated
Total
Disputes
Initiated
Percentage
of Disputes
Initiated
Team Healtha
42,908
33%
Team Healtha
38,839
27%
SCP Healtha
22,312
17%
SCP Healtha
33,044
23%
Envisiona
14,244
11%
Radiology Partnersa
19,136
13%
Radiology Partnersa
11,297
9%
Envisiona
10,005
7%
HCA Healthcare
3,580
3%
SpecialtyCarea
3,672
3%
Roundtable Medical
Consultants
3,256
3%
HCA Healthcare
3,465
2%
SpecialtyCarea
2,549
2%
HaloMD
3,153
2%
Callagy Law
2,449
2%
United Medical
Monitoring
3,092
2%
Prime Healthcare
2,065
2%
Roundtable Medical
Consultants
2,616
2%
United Medical
Monitoring
1,381
1%
Prime Healthcare
2,346
2%
Initiating Party (or
Representative)
Initiating Party (or
Representative)
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 9 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 9 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network.
a. Entity had evidence of private-equity affiliation. There is no single authoritative resource that identifies
entities that are affiliated with, or owned by, private equity firms, so private equity affiliation was identified
through a compilation of resources that may not be comprehensive.
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Table A-2. Top 10 Initiating Parties or Their Representatives for Disputes Involving
OON Ambulance Services
(Q1 and Q2 of 2023)
Q1
Q2
Total
Disputes
Initiated
Percentage
of Disputes
Initiated
Global Medical
Responsea
3,131
45%
Air Methodsa
1,359
Initiating Party (or
Representative)
Total
Disputes
Initiated
Percentage
of Disputes
Initiated
Global Medical
Responsea
3,903
53%
19%
Phi Air Medical
1,098
15%
1,094
15%
Initiating Party (or
Representative)
Phi Air Medical
1,154
17%
Air Methodsa
Apollo MedFlighta
257
4%
Apollo MedFlighta
250
3%
Intermountain Health
148
2%
Life Flight
182
2%
HSI Health
143
2%
McLeod Regional
Medical Center
142
2%
Life Flight
136
2%
HSI Health
135
2%
Quick Med Claimsa
86
1%
Survival Flight
119
2%
Survival Flight
85
1%
Intermountain Health
79
1%
McLeod Regional
Medical Center
77
1%
Quick Med Claimsa
69
1%
Sources: Departments of Health and Human Services, Labor, and the Treasury, Table 10 in “Federal IDR
Supplemental Tables for 2023, Q1,” and Table 10 in “Federal IDR Supplemental Tables for 2023, Q2.” Data as of
February 15, 2024.
Notes: IDR = independent dispute resolution; OON = out of network.
a. Entity had evidence of private-equity affiliation. There is no single authoritative resource that identifies
entities that are affiliated with, or owned by, private equity firms, so private equity affiliation was identified
through a compilation of resources that may not be comprehensive.
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No Surprises Act IDR Process Data Analysis for the First Half of 2023
Author Information
Ryan J. Rosso
Analyst in Health Care Financing
Wen W. Shen
Legislative Attorney
Acknowledgments
Mari Y. Lee, Visual Information Specialist, helped produce the figures within this product.
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