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More Twists to the IDR Process in the No Surprises Act?

By: Kaitlyn MacLeod, Esq.

The latest final rule on the No Surprises Act has finally been released by the U.S. Departments of Health and Human Services, Labor, and Treasury. There are some important clarifications made in this latest rule, including confirmation that the Qualifying Payment Amount (QPA) is no longer the presumptive out-of-network rate.

QPA Is No Longer the Presumptive Out-of-Network Rate

Before this recent rule, the presumption in Independent Dispute Resolution (IDR) was that the QPA, generally the median in-network payment amount made by the plan to providers in the region, would be the final payment amount, unless other factors overrode that presumption. This new rule turns away from this assumption, which is consistent with recent cases that have ruled that the presumption is not in line with the requirements of the No Surprises Act and “conflicts with the unambiguous terms of the Act in several key respects.”

IDR entities will now need to “select the offer that best represents the value of the item or service under dispute after considering the QPA and all permissible information submitted by the parties.” The additional information includes

  1. The level of training, experience and quality and outcome measurements of the provider or facility that provided the service;
  2. The market share held by the provider or facility or of the plan in the geographic region where the service was provided;
  3. The acuity of the individual receiving the service or the complexity of the service;
  4. The teaching status, case mix, and scope of services of the facility that provided the service; and
  5. The demonstration of good faith efforts (or lack thereof) made by the provider, facility, or the plan to enter into network agreements and contracted rates during the last four plan years.

IDR Entity Explanations

IDR entities will now also be required to submit a statement detailing their reasons for making a particular determination in all cases – not just when they do not choose to based solely on the QPA.

No Double-Dipping

The new rule also directs IDR entities not to double-dip by considering criteria that has already been included in the determination of the QPA or already submitted by either party. There are certain factors, like patient acuity or the complexity of a service, that may already be considered in the calculation of the QPA – and should not receive additional consideration if submitted separately as well.

Extra Information Needed if a Plan Downcodes a Claim

As part of the IDR process, plans must now provide additional information to providers and facilities when they have “downcoded” a claim – which is when the plan alters the service code or modifier to lower the QPA to an amount less than that billed by the provider or facility. Now, when a QPA is calculated based on a downcoded service code or modifier, the plan must provide a statement that the claim was downcoded, why the claim was downcoded, and what the QPA would be had the service not been downcoded.

Questions on the new rule and how it affects No Surprises Act compliance? Our consulting team is here to help – contact us at