No Surprises Act (NSA) Independent Dispute Resolution (IDR) Process Data Analysis for 2023

No Surprises Act (NSA) Independent Dispute Resolution (IDR) Process Data Analysis for 2023

No Surprises Act (NSA) Independent Dispute Resolution (IDR) Process Data Analysis for 2023

January 17, 2025

Congressional Research Service

https://crsreports.congress.gov

R48359

Congressional Research Service

SUMMARY

No Surprises Act (NSA) Independent Dispute Resolution (IDR) Process Data Analysis for 2023

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. 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.

As of June 13, 2024, the Departments of Health and Human Services, Labor, and the Treasury—pursuant to NSA requirements—publicly made available certain data about IDR operations in calendar year 2023. In general, the data show an IDR process that was still maturing in 2023, as the year saw significant increases in the use of the IDR process (within the year and relative to 2022) by providers, extended timelines for payment determinations due in part to periods of IDR process suspension resulting from pending litigation, and notable increases in payment determination amounts in certain medical specialties.

In 2023, 679,156 federal IDR disputes were initiated. Of this total, 657,040 disputes (approximately 97%) involved OON emergency/nonemergency services, and 22,116 disputes (approximately 3%) involved OON air ambulance services. The total is more than three times the total number of disputes initiated in 2022 (189,977 OON emergency/nonemergency services and 10,135 OON air ambulance services). Of the disputes initiated in 2023, over 55% were initiated in Q4 alone, which may be attributable in part to an extension of the time frames to initiate disputes from the previous quarter as a result of litigation and a decrease in administrative fees. Providers initiated nearly all of the disputes in 2023 (over 99%). Providers with evidence of private equity affiliation were particularly heavy utilizers of the IDR process; those providers initiated over two-thirds of the disputes involving OON emergency/nonemergency services in each quarter and over 60% of the disputes involving OON air ambulance services in each quarter.

One factor that may have contributed to providers’ willingness to use the IDR process during this period is providers’ general success with the process. In 2023, providers prevailed in a great majority of the payment determinations (approximately 80%), and a similar majority of selected offers (approximately 80%) were for an amount greater than the QPA. At least half of insurers’ offers in each quarter in 2023 were at or below the QPA. Two specialties—(1) surgery and (2) neurology and neuromuscular procedures—saw significant increases in the median prevailing offer relative to the QPA from Q1 to Q4 of 2023. The median prevailing offer for disputes involving surgery increased from around 3 times the QPA in Q1 to nearly 10 times the QPA in Q4; for disputes involving neurology and neuromuscular procedures, the median prevailing offer increased from over 3 times the QPA in Q1 to over 12 times the QPA in Q4.

Moving forward, key questions for long-term future analysis continue to include whether subsequent data reflect changes in IDR process utilization, changes in 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, in-network reimbursement rates for these types of services, and health insurance premiums.

R48359

January 17, 2025

Ryan J. Rosso Analyst in Health Care Financing

Wen W. Shen Legislative Attorney

No Surprises Act Independent Dispute Resolution Process Data Analysis for 2023

Congressional Research Service

Contents

Overview ......................................................................................................................................... 1 Dispute Initiation ............................................................................................................................. 2

How Many Disputes Were Initiated? ........................................................................................ 2 Who Were the Parties Initiating Disputes? ................................................................................ 3

Where Were Disputes Initiated? ................................................................................................ 5

Dispute Resolution .......................................................................................................................... 7

How Were Disputes Resolved? ................................................................................................. 7 How Long Did It Take for IDR Entities to Make Payment Determinations? ........................... 9 Who Were the Prevailing Parties in Disputes, and How Do the Payment

Determinations Compare with the Qualifying Payment Amount? ....................................... 12

Observations and Future Considerations ....................................................................................... 15

Dispute Volume ....................................................................................................................... 16 Payment Determinations ......................................................................................................... 16 IDR Process Operations .......................................................................................................... 17

Figures

Figure 1. Parties Initiating the Federal IDR Process in 2023 .......................................................... 4 Figure 2. OON Emergency/Nonemergency Service Disputes by State in 2023 .............................. 6

Figure 3. OON Air Ambulance Service Disputes by State in 2023 ................................................. 7

Figure 4. Federal IDR Process Payment Determination Outcomes in 2023 ................................... 8 Figure 5. Number of Determinations in 2023 for OON Emergency/Nonemergency

Disputes and OON Air Ambulance Disputes, Grouped by Business Days to Determination ............................................................................................................................. 10

Figure 6. Prevailing Party in IDR Payment Determinations in 2023 ............................................ 13 Figure 7. Plan Offers for OON Emergency/Nonemergency Service Disputes as a

Percentage of QPA ..................................................................................................................... 14

Figure 8. Median Prevailing Offer as a Percentage of QPA for Each Specialty in 2023 ............... 15

Tables

Table 1. Median Number of Business Days to Determination for OON

Emergency/Nonemergency Disputes, by Quarter, State Bifurcation, and Dispute Type ........... 12

Table A-1. Top 10 Initiating Parties or Their Representatives for Disputes Involving

OON Emergency/Nonemergency Services in 2023 ................................................................... 19

Table A-2. Top 10 Initiating Parties or Their Representatives for Disputes Involving OON

Air Ambulance Services in 2023 ................................................................................................ 20

Table A-3. Total Number of Payment Determinations by Specialty ............................................. 21

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Appendixes

Appendix. List of Top 10 Initiating Parties in 2023, by Quarter ................................................... 19

Contacts

Author Information ........................................................................................................................ 22

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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,⁴ the insurer and provider each submit to the IDR entity an amount representing what the party believes the total price of care should be (i.e., a payment offer), and 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.⁵ 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, or 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.⁶

The NSA also directs the Department of Health and Human Services to publish, on a quarterly basis, information about the implementation of the IDR process.⁷ 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.⁸

As of June 13, 2024, the Departments of Health and Human Services, Labor, and the Treasury (hereinafter, the Departments) have released the public-use files (PUFs) containing the relevant IDR operations data, as well as certain summary supplemental tables, for all quarters of calendar

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 refer collectively 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 See Katie Keith, Commonwealth Fund, “Health Care Providers Fight Arbitration Rule in No Surprises Act,” March 17, 2022, https://www.commonwealthfund.org/blog/2022/health-care-providers-fight-arbitration-rule-no-surprises-act.

5 42 U.S.C. §300gg-111(c)(5)(C).

6 42 U.S.C. §300gg-111(a)(3)(K).

7 42 U.S.C. §300gg-111(c)(7).

8 42 U.S.C. §300gg-111(c)(7).

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year 2023.⁹ This report builds upon previous CRS analysis to provide an overview and analysis of the 2023 data.¹⁰

Dispute Initiation

How Many Disputes Were Initiated?

In 2023, 679,156 federal IDR disputes were initiated. Of this total, 657,040 disputes (approximately 97%) involved OON emergency/nonemergency services, and 22,116 disputes (approximately 3%) involved OON air ambulance services. The total is more than three times the total number of disputes initiated in 2022 (189,977 OON emergency/nonemergency services and 10,135 OON air ambulance services).¹¹

As shown in Figure 1, the number of IDR disputes initiated increased in each quarter of 2023 except in Q3 (July 1, 2023-September 30, 2023). For most of Q3, the Departments suspended all or part of the IDR process operations in response to court decisions issued in August 2023.¹² As a result of the suspensions, no party was able to initiate any disputes between August 3 and early October; by early October, the IDR process remained partially suspended as the Departments allowed parties to initiate only OON emergency or nonemergency disputes that were not batched. (Batched disputes are disputes in which multiple qualified services are considered jointly as part of one IDR determination.¹³) Parties were unable to initiate batched disputes and air ambulance disputes from August until mid-December.¹⁴

The overall increase of initiated disputes between Q1 and Q4 is primarily attributable to increases in OON emergency or nonemergency service disputes in Q4, during which parties initiated more

9 More specifically, this report uses data from the Federal IDR Supplemental Tables for 2023 Q1-Q4 and the Federal IDR Public Use Files (PUF) for 2023 Q1-Q4. See Centers for Medicare & Medicaid Services (CMS), Independent Dispute Resolution Reports (“2023 Reporting Year”), https://www.cms.gov/nosurprises/policies-and-resources/reports.

10 In general, this report categorizes data for the 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. For more information on CRS’s previous analysis, see CRS Report R48058, No Surprises Act Independent Dispute Resolution (IDR) Process Data Analysis for the First Half of 2023.

11 The IDR process portal was launched April 15, 2022, and disputes initiated in Q2 of 2022 include disputes that would have been eligible for the IDR process beginning January 1, 2022. Department of Health and Human Services (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-15- september-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/partial- report-idr-process-octoberdecember-2022.pdf (hereinafter, HHS, Department of Labor, and Department of the Treasury, Partial Report on the IDR Process).

12 Centers for Medicare & Medicaid Services, Notices, July 19, 2024, https://www.cms.gov/nosurprises/notices (see “Notices from 2023”). For more information on the legal challenges to the No Surprises Act, see CRS Legal Sidebar LSB11036, Overview of Selected No Surprises Act Litigation.

13 42 C.F.R. §149.510(a)(2)(i).

14 The IDR process was also suspended during Q1 between February 6, 2023, and March 17, 2023, as a result of a district court decision that vacated certain rules governing how IDR entities should select between the payment offers. See Tex. Med. Assoc. v. U.S. Dep’t of Health & Human Servs., 654 F. Supp. 3d 575 (E.D. Tex. 2023). That suspension may have contributed to the lower number of disputes initiated during that quarter.

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than double the number of disputes compared to every other quarter (see Figure 1). OON air ambulance service disputes were roughly stable across each quarter of 2023.

This increase in Q4 in OON emergency or nonemergency item disputes is particularly notable given that the IDR process, as noted above, remained partially suspended for all but two weeks of Q4. The volume of initiated disputes during that quarter may be attributable in part to several factors. These factors may include the extension of the time frames to initiate disputes from the previous quarter during which dispute initiation was suspended, as well as certain changes in the IDR process resulting from litigation. For example, as a result of one of the August 2023 court decisions, the administrative fee that each party participating in the federal IDR process must pay was lowered from $350 to $50 per party per dispute through the end of 2023.¹⁵ In addition, the same court decision also made it easier for an initiating party to batch more items and services in one dispute.¹⁶ Together, these changes generally mean that it costs less for a party to initiate a dispute, and that each dispute may include more items and services than before. Due to the suspension of the IDR process as noted above, the lowered administrative fee and updated batching rules primarily applied only to disputes initiated during Q4.¹⁷

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 initiating parties during 2023. As shown in Figure 1, for both categories of OON items or services, providers and facilities initiated more than 99% of the disputes.

15 Tex. Med. Assoc. v. Dep’t of Health & Human Servs., No. 6:23-cv-59, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023). For more information on the legal challenges to the No Surprises Act, see CRS Legal Sidebar LSB11036, Overview of Selected No Surprises Act Litigation. 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. Department of the Treasury, Internal Revenue Service (IRS); Department of Labor, Employee Benefits Security Administration (EBSA); HHS, CMS, “Federal Independent Dispute Resolution (IDR) Process Administrative Fee and Certified IDR Entity Fee Ranges,” 88 Federal Register 88494, 88500, December 21, 2023.

16 Tex. Med. Assoc. v. Dep’t of Health & Human Servs., No. 6:23-cv-59, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023). Under the challenged agency batching rule, an initiating party may generally only submit items and services jointly as part of one determination if the items and services are billed under the same service code. This rule was vacated by the district court in the August 3, 2023, decision. See Tex. Med. Assoc., 2023 WL 4977746, at *15.

17 CMS, “Federal Independent Dispute Resolution (IDR) Process Administrative Fee FAQs,” August 2023, https://www.cms.gov/files/document/idr-admin-fees-faqs-081123-508.pdf-0.

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Figure 1. Parties Initiating the Federal IDR Process in 2023

Figure is interactive in the HTML version of this report.

Source: 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,” Table 1 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 1 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 2023, by quarter. For OON emergency/nonemergency service disputes, the top four initiating parties (Team Health, SCP Health, Radiology Partners, and Envision) accounted for around 60-70% of all disputes in each quarter of 2023. In particular, Team Health—the most frequently initiating party—initiated over 25% of disputes in each quarter. 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 each quarter of 2023, and the top initiating party (Global Medical Response) accounted for over 40% of all disputes in each quarter.

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 in 2023.¹⁸ Provider entities with evidence of private equity affiliations comprised, in each quarter, 5 of the top 10 initiating entities and initiated at least two-thirds (67%) of all disputes involving OON emergency/nonemergency services. With respect to OON air ambulance services, entities with

18 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 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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evidence of private equity affiliations comprised, in each quarter, 3 or 4 of the top 10 initiating entities and initiated around 60% or more of all disputes involving OON air ambulance services. In an analysis of IDR process data for 2022, the U.S. Government Accountability Office found that 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.¹⁹ Data from 2023 therefore show a significant growth in the proportion of OON emergency/nonemergency service disputes initiated by entities with private equity affiliations.²⁰

Among noninitiating parties for OON emergency/nonemergency service disputes, the Departments’ data show that UnitedHealthcare was the most common noninitiating party, constituting at least 30% of all disputes in each quarter of 2023.

Where Were Disputes Initiated?

Figure 2 shows the number of disputes initiated in each state in 2023. In each quarter, disputes were highly concentrated in a handful of states. Eight states in each quarter accounted for at least 72% of all disputes involving OON emergency/nonemergency services. Seven of the top eight states were the same in each quarter: Arizona, Florida, Georgia, New Jersey, New York, Texas, and Virginia. Of these seven states, six (Florida, Georgia, New Jersey, New York, Texas, and Virginia) 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.²¹

Over the course of 2023, the proportion of disputes initiated in 1 of the 22 total bifurcated states—which are highlighted in outlines in Figure 2—increased from quarter to quarter (around 60% in Q1 to around 79% in Q4). Disputes initiated in bifurcated states generally require additional review by IDR entities to determine dispute eligibility in the federal IDR process.²²

Of all the states, Texas had the highest amount of disputes involving OON emergency/nonemergency services initiated in 2023, and saw increases in the share of disputes initiated within the state from Q1 to Q4 (19% to 27%, respectively). By Q4, Texas’s 85,586 OON emergency/nonemergency services dispute initiations were more than double the second-highest state (Florida, 39,640), and roughly the same amount as the second- through fourth-highest state Q4 totals combined (86,670 combined for Florida, Virginia, and Georgia).

19 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.

20 See Departments of Health and Human Services, Labor, and the Treasury, Table 8 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 8 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 8 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 8 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). There is no single authoritative resource that identifies entities affiliated with, or owned by, private equity firms, so private equity affiliation was identified through a compilation of resources that may not be comprehensive.

21 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-guidance- documents/Applicability-Federal-IDR-Bifurcated-States.pdf.

22 GAO, Roll Out of Independent Dispute Resolution Process.

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Figure 2. OON Emergency/Nonemergency Service Disputes by State in 2023

Source: 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,” Table 7 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 7 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 all- payer 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 (Figure 3). 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.²³

23 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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Figure 3. OON Air Ambulance Service Disputes by State in 2023

Source: 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,” Table 7 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 7 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 2024. Notes: IDR = independent dispute resolution; OON = out of network.

Dispute Resolution

How Were Disputes Resolved?

During 2023, IDR entities closed 311,863 disputes, 294,722 of which were for OON emergency/nonemergency services and 17,141 of which were for OON air ambulance services. This total is more than five-and-a-half times greater than the total number of disputes closed in 2022 (54,821).²⁴ The Departments attribute some of this increase to IDR entities scaling up their operations.²⁵

As shown in Figure 4, nearly two-thirds of closed disputes in 2023 resulted in payment determinations (209,346). More than one-fifth of the closed disputes (68,383, or approximately

24 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.

25 HHS, Department of Labor, and Department of the Treasury, Supplemental Background on Federal Independent Dispute Resolution Public Use Files July 1, 2023-December 31, 2023, p. 4, https://www.cms.gov/files/document/ federal-idr-supplemental-background-2023-q3-2023-q4.pdf. Hereinafter, HHS, Department of Labor, and Department of the Treasury, Supplemental Background, July 1, 2023-December 31, 2023.

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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 attributed this decrease to IDR process improvements and greater familiarity with the IDR process among disputing parties.²⁶ However, the percentage of disputes found ineligible did not continue to decrease in the second half of 2023 (22% in Q3 and Q4).

Notwithstanding a drop in payment determinations made during Q3, during which IDR entities were instructed to pause payment determinations from August 3, 2023, to September 21, 2023, in response to relevant court decisions, the amount of payment determinations increased in every other quarter from Q1 to Q4, as reflected in Figure 4.²⁷

Figure 4. Federal IDR Process Payment Determination Outcomes in 2023

Figure is interactive in the HTML version of this report.

Source: 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,” Table 5 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 5 in “Federal IDR Supplemental Tables for 2023,

26 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/federal- idr-supplemental-background-2023-q1-2023-q2.pdf. Hereinafter, HHS, Department of Labor, and Department of the Treasury, Supplemental Background, January 1, 2023-June 30, 2023.

27 Centers for Medicare & Medicaid Services, Notices, https://www.cms.gov/nosurprises/notices.

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Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 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.

How Long Did It Take for IDR Entities to Make Payment Determinations?

For disputes that resulted in a payment determination in 2023, Figure 5 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.²⁸ 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).²⁹ This timeline, however, can be extended for specified reasons (e.g., due to matters beyond the parties’ control).³⁰

As shown in Figure 5, a majority of payment determinations made during 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 to just over 80 days for Q3 and Q4. The median number of days to payment determination decreased for OON air ambulance services from 47 business days in Q1 to 41 business days in Q2, before increasing to 76 days in Q3 and 125 days in Q4.

28 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.

29 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). See also HHS, Department of Labor, and Department of the Treasury, Federal Independent Dispute Resolution (IDR) Process Guidance for Certified IDR Entities, December 2023, pp. 9, 27, https://www.cms.gov/files/document/federal-idr- guidance-idr-entities-march-2023.pdf; Centers for Medicare & Medicaid Services, Notices, https://www.cms.gov/ nosurprises/notices (noting that the Departments have granted extensions related to IDR process suspensions in 2023, and in 2024, the Departments have also granted extensions related to natural disasters and large-scale software outage or cybersecurity incidents).

30 As an example, timelines can be extended in instances where the IDR entity needs additional information to determine a dispute’s eligibility or were instructed by CMS to pause payment determinations due to litigation. 45 C.F.R. §149.510(g).

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Figure 5. Number of Determinations in 2023 for OON Emergency/Nonemergency

Disputes and OON Air Ambulance Disputes, Grouped by Business Days to

Determination

Source: CRS analysis of the Departments of Health and Human Services, Labor, and the Treasury, “Federal IDR Public Use File (PUF) for 2023, Q1,” “Federal IDR PUF for 2023, Q2,” “Federal IDR PUF for 2023, Q3,” and

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“Federal IDR PUF for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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.

The percentages of OON emergency/nonemergency service disputes and OON air ambulance service disputes determined within 33 business days or fewer appear to have been affected by the pauses in the IDR process from February 6, 2023, through March 17, 2023, and again from August 3, 2023, through September 20, 2023, and the issuance of updated guidance after legal decisions.³¹ For OON emergency/nonemergency service disputes, the percentage of disputes determined within 33 business days or fewer were lowest in Q1 and Q3 (10% in Q1, 17% in Q2, 13% in Q3, and 31% in Q4). The Departments took longer to issue updated guidance for OON air ambulance determinations to align with August legal decisions (guidance was issued December 15, 2023), which could have contributed to the percentage of OON air ambulance service disputes determined within 33 business days or fewer decreasing after Q2 (35% in Q2, 19% in Q3, and 3% in Q4).³²

Determinations made outside of the 33-business-day period do not necessarily indicate that the IDR entities did not meet appropriate deadlines. In addition to the pauses in payment determinations at various points during 2023, certain extensions may be provided to IDR entities in instances where the IDR entity needs additional information to determine a dispute’s eligibility, for example.

The Departments have stated that the primary cause of determination delays is the complexity involved in determining dispute eligibility.³³ 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.³⁴ Across the year, there was not a consistent difference between the median number of days to a determination for bifurcated and nonbifurcated state disputes. However, the median number of days to determination for batched disputes often was higher than for single disputes. This was particularly pronounced in Q4, where the median number of business days to determination for batched dispute payments was 300 days in bifurcated states and 284 days in nonbifurcated states, which was much larger than the median amounts of 73 days and 89 days for single dispute determinations in bifurcated and nonbifurcated states, respectively. The increase in the number of days for determinations in batched disputes (see Table 1) was likely due to batched dispute payment determinations being suspended from August 3, 2023, through December 14, 2023,³⁵ due to a court decision.³⁶

31 For more information on NSA litigation, see CRS Legal Sidebar LSB11036, Overview of Selected No Surprises Act Litigation.

32 Centers for Medicare & Medicaid Services, Notices, https://www.cms.gov/nosurprises/notices.

33 HHS, Department of Labor, and Department of the Treasury, Initial Report on the IDR Process, p. 8.

34 HHS, Department of Labor, and Department of the Treasury, Initial Report on the IDR Process, p. 8.

35 See “How Many Disputes Were Initiated?”

36 The relevant court decision was Tex. Med. Assoc. v. Dep’t of Health & Human Servs., No. 6:23-cv-59, 2023 WL 4977746 (E.D. Tex. Aug. 3, 2023).

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The Departments proposed a rule in November 2023 that seeks to further improve the eligibility determination process, but this rule has not been finalized as of the publication date of this report.³⁷

Table 1. Median Number of Business Days to Determination for OON

Emergency/Nonemergency Disputes, by Quarter, State Bifurcation,

and Dispute Type

(Q1-Q4 of 2023)

Q1 Q2 Q3 Q4

Batched Bundled Single Batched Bundled Single Batched Bundled Single Batched Bundled Single

Bifurcated State 51 47 51 87 73 73 75 102 88 301 147 73

Nonbifurcated State 55 50 52 77 73 68 96 85 81 284 160 89

Source: CRS analysis of the Departments of Health and Human Services, Labor, and the Treasury, “Federal IDR Public Use File (PUF) for 2023, Q1,” “Federal IDR PUF for 2023, Q2,” “Federal IDR PUF for 2023, Q3,” and “Federal IDR PUF for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 all- payer model agreement. Batched disputes are disputes in which multiple qualified services are considered jointly 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.

Who Were the Prevailing Parties in Disputes, and How Do the Payment Determinations Compare with the Qualifying Payment Amount?

For disputes that resulted in payment determinations during 2023, Figure 6 illustrates the determination outcome. Providers and facilities were the prevailing party—that is, had their offers selected—in approximately 80% of OON emergency/nonemergency service and OON air ambulance service determinations during 2023. Insurers, in contrast, were the prevailing party in approximately 20% 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.

Of note, providers and facilities improved upon their initial success with the IDR process as the year progressed; the percentage of claims in which providers and facilities were the prevailing party for OON emergency/nonemergency service determinations increased from Q1 to Q4 (72% in Q1, 79% in Q2, 78% in Q3, and 85% in Q4) (Figure 6).

37 Office of Personnel Management; 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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Figure 6. Prevailing Party in IDR Payment Determinations in 2023

Figure is interactive in the HTML version of this report.

Source: Departments of Health and Human Services, Labor, and the Treasury, Table 12 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 12 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 12 in “Federal IDR Supplemental Tables for 2023, Q3,” Table 12 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 2024. Notes: IDR = independent dispute resolution; OON = out of network.

In terms of the offer amounts selected, approximately 80% of the payment determinations reached during 2023 resulted in the selection of a prevailing offer 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, and Figure 7 indicates that at least half of insurers’ offers in each quarter in 2023 were at or below the QPA.³⁸

38 HHS, Department of Labor, and Department of the Treasury, Supplemental Background, January 1, 2023-June 30, 2023, p. 4.

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Figure 7. Plan Offers for OON Emergency/Nonemergency Service

Disputes as a Percentage of QPA

Figure is interactive in the HTML version of this report.

Source: CRS analysis of the Departments of Health and Human Services, Labor, and the Treasury, “Federal IDR Public Use File (PUF) for 2023, Q1,” “Federal IDR PUF for 2023, Q2,” “Federal IDR PUF for 2023, Q3,” and “Federal IDR PUF for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 2024. Notes: QPA = qualifying payment amount (i.e., generally, the 2019 median in-network rate for the item or service at issue, indexed for inflation). CRS analysis is at the dispute line-item level and excludes instances where the QPA was not reported or was not available.

Figure 8 illustrates, for each quarter, the medical specialties involved in over 1,000 payment determinations in a single quarter and shows the median prevailing offer for the disputes involving that specialty as a percentage of the QPA. The Departments’ data show that emergency department services were the subject of the greatest number of payment determinations (over half of all determinations; see Table A-3), and the median prevailing offer in those determinations was relatively stable during the year at just over two times the QPA in each quarter.

While the Departments’ data show that surgery and neurology and neuromuscular procedure determinations accounted for a smaller number of determinations (around 1 in 10 of all determinations), the median prevailing offer for both of these procedure determinations increased significantly from Q1 to Q4. According to the same data, the median prevailing offer for disputes involving surgery increased from around 3 times the QPA in Q1 to nearly 10 times the QPA in Q4; for disputes involving neurology and neuromuscular procedures, the median prevailing offer increased from over 3 times the QPA in Q1 to over 12 times the QPA in Q4. Contributing to this growth in the median prevailing offers appear to be increases in the percentage of determinations for both specialties that had a prevailing offer over 3,000% of QPA.³⁹ In Q1, fewer than 10% of

39 CRS analysis is at the dispute line-item level and excludes instances where the QPA was not reported or was not available. The Departments acknowledged that smaller-dollar items had higher prevailing offers expressed as a (continued...)

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prevailing offers for both surgery and neurology and neuromuscular procedure determinations were greater than 3,000% of QPA. By Q4, the Departments’ data show that the percentage of prevailing offers that exceeded this threshold were 22% for surgery determinations, and 17% for neurology and neuromuscular procedure determinations.

Figure 8. Median Prevailing Offer as a Percentage of QPA for Each Specialty in 2023

Figure is interactive in the HTML version of this report.

Source: Departments of Health and Human Services, Labor, and the Treasury, Table 14 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q3,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 2024. Notes: Chart only includes specialties that had more than 1,000 determinations in a single quarter. QPA = qualifying payment amount (i.e., generally, the 2019 median in-network rate for the item or service at issue, indexed for inflation). Analysis is at the dispute line-item level and excludes instances where the QPA was not reported or was not available.

Observations and Future Considerations

Overall, the Departments’ 2023 data about the federal IDR process show a significant increase in the use of this process relative to 2022 (particularly by providers and facilities with evidence of private equity affiliation), continued success in this process by providers and facilities, and notable increases in payment determination amounts for items and services in certain specialties. The data also show, corresponding with the increased volume of disputes, that IDR determinations continued to frequently take longer than the statutorily designated time frame, but

percentage of QPA, because smaller dollar differences can result in larger percentage changes. This correlation may be more pertinent to neurology and neuromuscular procedure determinations, as the median QPA among these types of determinations where the prevailing offer was above 3,000% in 2023 was $69. Among surgical determinations where the prevailing offer was above 3,000% in 2023, the median QPA was $492. HHS, Department of Labor, and Department of the Treasury, Supplemental Background, July 1, 2023-December 31, 2023, p. 4.

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that IDR entities, compared to 2022, also increased their efficiency in making payment determinations in 2023.

Dispute Volume

The Departments’ data show that number of disputes initiated in 2023 was more than five times greater than the number of disputes initiated in 2022. Within 2023, the IDR process also saw increased utilization as the year progressed, despite the fact that the IDR process was wholly or partially suspended for roughly half of 2023 as a result of litigation.⁴⁰ These increases were largely driven by providers and facilities—particularly those providers and facilities with evidence of private equity affiliation, who initiated an overwhelming majority of the disputes— and suggest an increased reliance by providers and facilities on the IDR process.

In future analysis of 2024 data, which the Departments have not yet released, the analysis may take into account several occurrences in 2024 that may have affected the volume of disputes initiated that year. In December 2023, for example, 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, 2024.⁴¹ To the extent the significant uptick in disputes initiated in Q4 of 2023 was associated with both a suspension of the IDR process in Q3 and a lowering of administrative fees from $350 per party to $50 per party, the fee increase in 2024 may have affected the number of disputes initiated in 2024. Additionally, certain external events in 2024 may also have affected IDR operations. In February 2024, UnitedHealth Group disclosed that one of its units—Change Healthcare, which facilitates transactions between many health care providers and insurers—experienced a cyberattack that disrupted the operations of many providers and insurers, including their ability to participate in the IDR process.⁴² The Departments have responded, in part, by providing a 120- calendar-day exception period—from June 14, 2024, through October 12, 2024—during which parties affected by the cyberattack could initiate disputes, regardless of when the payment or notice of denial payment and disclosures were transmitted.⁴³ Future analysis of 2024 IDR process data may consider whether these occurrences may have contributed to higher numbers of disputes being initiated during the second half of 2024 as compared to the first half of 2024.

Payment Determinations

In terms of payment determination amounts, the Departments’ 2023 data show at least two notable trends. First, as the year progressed, providers and facilities appeared to continue to improve upon their success in the federal IDR process. At the beginning of the year, they prevailed in 72% of the disputes resolved in Q1. By Q4, they prevailed in approximately 85% of the disputes resolved during that quarter.

Second, disputes involving certain medical specialties saw particularly significant increases across 2023. Disputes involving neurological and surgical services, for instance, saw a roughly 350% increase in their respective median payment determination amounts relative to the

40 See “How Many Disputes Were Initiated?”

41 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.

42 For more information, see CRS Insight IN12330, The Change Healthcare Cyberattack and Response Considerations for Policymakers.

43 Department of the Treasury, IRS; Department of Labor, EBSA; HHS, CMS, “Federal Independent Dispute Resolution (IDR) Process Change Healthcare Cybersecurity Incident Attestation,” (June 2024), https://www.cms.gov/ files/document/federal-idr-change-healthcare-cybersecurity-incident-attestation.pdf.

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applicable QPA from Q1 to Q4. This trend in payment determination amounts for disputes involving these specialties may warrant future observations and analysis. Preliminary analysis shows that these increases are at least partially attributable to increased percentages of disputes with prevailing offers above 3,000%.

Future analysis may further explore these payment determination amount increases involving these specialties. For example, additional analysis may consider whether there is a pattern related to their Current Procedure Terminology (CPT) codes, geographies, or other features. Furthermore, the extent to which the median prevailing offer remains elevated above QPAs may warrant analysis that looks at whether such elevated rates correlate with disproportionate increases in the number of service disputes for these specialties relative to other specialties. To the extent elevated rates are observed in more medical specialties, such observation may also warrant analysis that considers potential implications for provider network participation.

Continued observation and analysis of the 2024 data on payment determination amounts could also consider any changes in how plans or issuers must calculate the QPA, which has been used in the Departments’ data, this report, and other studies as a reference point for comparing payment determination amounts.⁴⁴ In one of the court decisions issued in August 2023, the district court vacated several agency rules related to QPA calculation.⁴⁵ These rules included, for instance, the requirement that plans exclude from the calculation certain incentive-based or retrospective payments or adjustments.⁴⁶ Although the Departments appealed that aspect of the district court’s order and prevailed before a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, the plaintiffs have sought review of that decision before the entire Fifth Circuit.⁴⁷ To the extent plans and issuers recalculated the QPAs in 2024 in accordance with the district court order, that may have affected data comparing payment determination amounts to QPAs.⁴⁸

IDR Process Operations

In terms of IDR process operation, the Departments’ 2023 data show that payment determinations continued to frequently take longer than the statutorily designated time frame. This may have been attributable to both the increased volumes of disputes initiated as well as the periods of IDR process suspension. At the same time, however, IDR entities ramped up their processes to resolve more than five times more disputes in 2023 as compared to 2022. That the rates of initiation and determination generally increased quarter over quarter in 2023 implies that utilization of the IDR

44 See Departments of Health and Human Services, Labor, and the Treasury, Table 14 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 14 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports; The Commonwealth Fund, Report Shows Dispute Resolution Process in No Surprises Act Favors Providers, March 2024, https://www.commonwealthfund.org/blog/ 2024/report-shows-dispute-resolution-process-no-surprises-act-favors-providers.

45 See Tex. Med. Assoc. v. U.S. Dep’t of Health & Human Servs., No. 6:22-cv-450, 2023 WL 5489028, *9, *19 (E.D. Tex. Aug. 24, 2023).

46 See Tex. Med. Assoc. v. U.S. Dep’t of Health & Human Servs., No. 6:22-cv-450, 2023 WL 5489028, *9, *19 (E.D. Tex. Aug. 24, 2023).

47 See Tex. Med. Assoc. v. U.S. Dep’t of Health & Human Servs., 120 F.4th 494, 503–508 (5th Cir. 2024).

48 Based on feedback that plans and issuers need additional time to complete the significant efforts associated with recalculating QPAs in accordance with the rules that remain, the Departments issued guidance stating that they are exercising enforcement discretion for any plans and issuers that use a QPA calculated in accordance with the methodology under the July 2021 IFR. The Departments state that they do not expect to extend this enforcement discretion for items and services furnished on or after November 1, 2024. Department of Labor, Department of Health and Human Services, and Department of the Treasury, “FAQ About Consolidated Appropriations Act, 2021 Implementation Part 67,” May 1, 2024, https://www.cms.gov/files/document/faqs-part-67.pdf.

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process and greater efficiencies in IDR determinations by IDR entities may have continued into 2024. It should be noted, however, that during 2023 Q4, the quarter during which parties initiated the highest number of disputes, the IDR process was reopened for batched disputes under new rules that generally made it easier to batch disputes.⁴⁹ Continued observation and analysis of the 2024 data could consider whether this change had any impact on the volume of disputes, rate of determination, or payment determination amounts. Future analysis could also consider whether the finalization of a proposed 2023 rule, which addresses many aspects of IDR operation including revised batching rules, may further affect IDR process operations.⁵⁰

Overall, in 2023, the significant increase in the use of the IDR process, the extended periods of IDR process suspension resulting from pending litigation, and the increase in time to payment determinations indicate that several aspects of the IDR process have not stabilized. The Departments are continuing to fine-tune the implementation of the process while parties are determining how best to make use of the process, and events and developments in 2024 may have introduced some uncertainties that affect the implementation of the IDR process. Key questions for long-term future analysis continue to 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, in-network reimbursement rates for these types of services, and health insurance premiums over time.

49 These new rules were the result of previous litigation. See footnote 16.

50 88 Federal Register 75744.

CRS-19

Appendix. List of Top 10 Initiating Parties in 2023, by Quarter

Table A-1. T op 10 Initiating Parties or Their Representatives for Disputes Involving

OON Emergency/Nonemergency Services in 2023

Q1 Q2 Q3 Q4

Initiating Party

(or

Representative)

Total

Disputes Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes

Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes

Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes

Initiated

Percentage of Disputes

Initiated

Team Healtha 42,908 33% Team Healtha 38,839 27% Team Healtha 20,786 30% Team Healtha 86,444 28%

SCP Healtha 22,312 17% SCP Healtha 33,044 23% Radiology Partnersa

15,197 22% SCP Healtha 68,402 22%

Envisiona 14,244 11% Radiology Partnersa

19,136 13% SCP Healtha 11,511 17% Radiology Partnersa

22,669 7%

Radiology Partnersa

11,297 9% Envisiona 10,005 7% Envisiona 3,227 5% Envisiona 19,225 6%

HCA Healthcare 3,580 3% SpecialtyCarea 3,672 3% United Medical Monitoring

1,702 2% SpecialtyCarea 13,134 4%

Roundtable Medical Consultants

3,256 3% HCA Healthcare 3,465 2% SpecialtyCarea 1,552 2% HaloMD 9,026 3%

SpecialtyCarea 2,549 2% HaloMD 3,153 2% HaloMD 1,320 2% Prime Healthcare 5,173 2%

Callagy Law 2,449 2% United Medical Monitoring

3,092 2% Roundtable Medical Consultants

1,157 2% R1 RCM 5,162 2%

Prime Healthcare 2,065 2% Roundtable Medical Consultants

2,616 2% HCA Healthcare 1,000 1% HCA Healthcare 3,784 1%

United Medical Monitoring

1,381 1% Prime Healthcare 2,346 2% Prime Healthcare 991 1% Providence Anesthesiology Associates

3,534 1%

CRS-20

Source: Departments of Health and Human Services, Labor, and the Treasury, Table 8 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 8 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 8 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 8 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 affiliated with, or owned by, private equity firms, so private equity affiliation was identified through a compilation of resources that may not be comprehensive.

Table A-2. T op 10 Initiating Parties or Their Representatives for Disputes Involving OON Air Ambulance Services in 2023

Q1 Q2 Q3 Q4

Initiating Party

(or

Representative)

Total

Disputes

Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes

Initiated

Percentage of Disputes

Initiated

Initiating Party

(or

Representative)

Total

Disputes Initiated

Percentage of Disputes

Initiated

Global Medical Responsea

3,131 45% Global Medical Responsea

3,903 53% Global Medical Responsea

1,595 50% Global Medical Responsea

1,940 43%

Air Methodsa 1,359 19% Phi Air Medical 1,098 15% Phi Air Medical 686 22% Phi Air Medical 1,200 26%

Phi Air Medical 1,154 17% Air Methodsa 1,094 15% Air Methodsa 328 10% Air Methodsa 530 12%

Apollo MedFlighta 257 4% Apollo MedFlighta 250 3% Apollo MedFlighta 99 3% McLeod Regional Medical Center

132 3%

Intermountain Health

148 2% Life Flight 182 2% Life Flight 97 3% HSI Health 109 2%

HSI Health 143 2% McLeod Regional Medical Center

142 2% HSI Health 53 2% Apollo MedFlighta 102 2%

Life Flight 136 2% HSI Health 135 2% AERO Med Claims 49 2% MedHealth Partners

93 2%

Quick Med Claimsa

86 1% Survival Flight 119 2% Intermountain Health

34 1% Intermountain Health

69 2%

Survival Flight 85 1% Intermountain Health

79 1% McLeod Regional Medical Center

24 1% Life Flight 68 1%

McLeod Regional Medical Center

77 1% Quick Med Claimsa

69 1% JET ICU 24 1% LifeLink III 56 1%

CRS-21

Source: Departments of Health and Human Services, Labor, and the Treasury, Table 10 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 10 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 10 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 10 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 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 affiliated with, or owned by, private equity firms, so private equity affiliation was identified through a compilation of resources that may not be comprehensive.

Table A-3. T otal Number of Payment Determinations by Specialty

Specialty Q1 Q2 Q3 Q4 Total

Emergency Department Services

12,870 32,083 27,496 42,716 115,165

Radiology 4,310 8,890 6,311 9,996 29,507

Air Ambulance 2,347 3,232 3,326 2,462 11,367

Surgery 1,231 1,983 2,483 4,650 10,347

Neurology and Neuromuscular Procedures

635 1,289 1,960 4,219 8,103

Anesthesia 1,384 1,946 1,497 3,232 8,059

Critical Care Services 481 1,107 1,288 2,388 5,264

Source: Departments of Health and Human Services, Labor, and the Treasury, Table 14 in “Federal IDR Supplemental Tables for 2023, Q1,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q2,” Table 14 in “Federal IDR Supplemental Tables for 2023, Q3,” and Table 14 in “Federal IDR Supplemental Tables for 2023, Q4,” https://www.cms.gov/nosurprises/policies-and-resources/reports (“2023 Reporting Year”). Q1 and Q2 data as of February 15, 2024. Q3 and Q4 data as of June 13, 2024. Notes: Table only includes specialties that had more than 1,000 determinations in a single quarter.

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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.

Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.