If your practice bills out-of-network claims for emergency care, anesthesia, radiology, pathology or hospital-based medicine, the independent dispute resolution process under the No Surprises Act has been part of your revenue cycle since April 2022. As of this week, it is not producing decisions. On February 10, 2023, CMS instructed certified IDR entities to hold all payment determinations and to recall any determinations issued after February 6. The arbitrators are still accepting disputes. They are just not deciding them.
The cause is a court ruling. On February 6, 2023, the U.S. District Court for the Eastern District of Texas ruled for the Texas Medical Association in its second challenge to the federal IDR rules, and vacated the parts of the August 2022 final rule that told arbitrators how to weigh the qualifying payment amount. This is the second time the same court has struck down the same idea. In February 2022 it vacated the interim rule's "rebuttable presumption" in favor of the QPA. The departments rewrote the rule in August 2022 to say arbitrators must consider the QPA first and then the other factors. The court has now said that version also goes beyond what Congress wrote.
Key takeaways
- Payment determinations have been on hold since February 10, 2023. Disputes are still being accepted, and the open negotiation and IDR initiation deadlines still run.
- The court vacated the parts of the August 2022 rule that made the QPA the primary factor. The statute's list of factors, unranked, is what arbitrators will apply when decisions resume.
- The administrative fee rose from $50 to $350 per party for disputes initiated on or after January 1, 2023, so batching similar claims matters more than it did last year.
- A practice that stops sending open negotiation notices because "IDR is closed" loses those claims permanently.
- State surprise billing processes are unaffected. Confirm which process governs each plan before you file.
What the statute says, and what the fight is about
The No Surprises Act, passed in December 2020 and effective January 1, 2022, protects patients from balance bills for emergency services and for certain non-emergency services by out-of-network clinicians at in-network facilities. The patient pays in-network cost sharing. The plan and the provider then settle the rest, first through 30 business days of open negotiation and, if that fails, through baseball-style arbitration where each side submits an offer and the arbitrator picks one.
Congress listed the factors an arbitrator may consider: the QPA (roughly the plan's median in-network rate for the service in that market), the clinician's training and experience, the market share of each party, the acuity of the patient, the teaching status and case mix of the facility, and good faith efforts to contract. The plans wanted the QPA to anchor the decision. Providers argued that Congress listed the factors without ranking them. The court has now twice agreed with the providers.
We think the practical effect of the ruling on any single dispute is smaller than the headlines suggest. The QPA is still a factor the arbitrator must consider, and the plan will still lead with it. What changes is the argument you make: under the vacated rule the non-QPA factors had to show that the QPA was not an appropriate payment; under the statute they simply have to be credible and documented, and the arbitrator weighs them as Congress listed them.
Who this affects
Independent practices with meaningful IDR volume are mostly facility-based: emergency physicians, anesthesiologists, radiologists, pathologists, hospitalists, and surgeons or assistant surgeons who see patients out of network at in-network hospitals or ambulatory surgery centers. Air ambulance operators have their own track. If your practice is in network with every plan that matters, the ruling changes little. If you have disputes pending, or you have been declining low initial payments and negotiating, this is your problem this month.
What the pause does and does not stop
| Step | Status as of mid February 2023 |
|---|---|
| Initial payment or notice of denial from the plan | Still required within 30 calendar days of a clean claim |
| Open negotiation (30 business days) | Still runs; you must initiate it to preserve the right to IDR |
| Initiating IDR (4 business days after negotiation ends) | Portal is open; disputes are being accepted |
| Arbitrator selection and eligibility review | Continuing in most cases |
| Payment determinations | On hold since February 10; determinations after February 6 recalled |
| Payment on determinations already issued before February 6 | Due within 30 calendar days of the determination |
The deadlines that protect your right to dispute did not pause. A practice that stops sending open negotiation notices because "IDR is closed" will lose those claims permanently. Keep the intake running exactly as before.
The cost of a dispute went up in January
Separately from the court case, the departments raised the non-refundable administrative fee for each party from $50 to $350 for disputes initiated on or after January 1, 2023, citing the volume of disputes and the cost of eligibility reviews. Add the arbitrator's fee, which the losing party pays and which typically runs several hundred dollars, and a single-claim dispute has to be worth a good deal more than it did last year. Batching similar claims under one dispute is the practical answer, and the batching rules are strict: same plan, same provider or group, same or similar service, and dates of service within a 30-business-day window.
A worked example shows why. A fictional anesthesia group has a claim where the plan paid $600 against an expected $1,100. Filed alone, the group pays the $350 administrative fee up front and, if it loses, an arbitrator fee of perhaps $400 to $700 depending on the entity. The upside is a $500 difference; the downside is roughly $750 to $1,050 in fees. Filed as a batch of twelve similar claims from the same plan in the same 30-business-day window, the same fees apply once to a dispute worth $6,000. The arithmetic only works in batches, and batching requires a dispute log that can find the similar claims quickly.
The departments' first status report on the federal process, released in December 2022, showed more than 90,000 disputes initiated between mid April and the end of September 2022, several times the volume they had projected for a full year, and most of them still open. Backlogs were already long before this pause. Expect decisions, when they resume, to take months rather than weeks, and expect the eligibility review (is this claim actually subject to the federal process?) to be the step where many disputes die.
Building the offer package now
The pause is useful time. Under the statute, the arbitrator considers the QPA and the other factors, and the party with the better evidence for its offer tends to win. For each pending dispute, we ask practices to assemble a one- to two-page package with these elements: the clinician's board certification and years in practice; the acuity of the case in plain words (an ASA physical status, a trauma activation, an after-hours call-back); the facility's teaching status and case mix if relevant; the plan's history of contract offers to the group and the group's responses; and the group's contracted rates with other plans for the same service, which is the most persuasive comparison an arbitrator can see. Keep the package free of patient identifiers beyond what the dispute form requires.
Questions we hear
Should we just accept the initial payments until this is sorted out?
That depends on the gap between the payment and what you would accept, and on your volume. For claims where the plan paid close to your in-network rates elsewhere, negotiation often settles them without IDR. For claims where the plan paid a fraction of the charge, preserving the dispute costs little more than paperwork. Our view is that dropping disputes because of a temporary pause is a decision you cannot undo.
Do the state processes stop too?
No. Where a state has its own surprise billing law and dispute process that applies to the plan, the state process governs and it is not affected by this federal ruling. Fully insured plans in states like Texas, New York, New Jersey and California often fall under state processes; self-funded employer plans fall under the federal one. Confirm which applies before you file, because a dispute filed in the wrong forum is time lost that the deadlines will not give back.
Is this legal advice?
No. The ruling is fresh, the departments have not said how they will respond, and an appeal is possible. Talk to counsel before changing how you handle disputes. What we can help with is the operational side: identifying eligible claims, tracking the deadlines and assembling the offer packages as part of denial management for out-of-network practices.
What to do this month
- Keep a dispute log with one row per claim: date of service, plan, initial payment, QPA disclosed on the remittance, open negotiation start and end dates, IDR initiation date, dispute number, status. If you cannot produce this list on demand, you cannot manage the deadlines.
- Continue initiating open negotiation on every underpaid out-of-network claim that qualifies. Use the standard notice and send it in a way you can prove.
- Continue initiating IDR within the four-business-day window when negotiation fails. Batch where the rules allow, and use the log to find the similar claims.
- Prepare your offer packages with the non-QPA factors written out: the clinician's credentials, the acuity of the case, the facility's status, and your contracting history with the plan. Under the vacated rule these were secondary. Under the statute they are not.
- Watch the CMS No Surprises Act page for the notice that determinations are resuming. It will come as a guidance memo to the IDR entities, not a press release.
- Check that your remittances from plans include the QPA and the required disclosures. A plan that fails to disclose the QPA gives you an argument later.
