Federal Independent Dispute Resolution Operations; Correction
| Citation | 91 FR 55462 |
| Published date | 28 August 2026 |
| FR Document | 2026-17622 |
| Pages | 55462-55473 |
| Section | Rules and Regulations |
| Issuer | Health and Human Services Department,Labor Department,Treasury Department,Employee Benefits Security Administration,Internal Revenue Service |
Federal Register, Volume 91 Issue 166 (Friday, August 28, 2026)
[Federal Register Volume 91, Number 166 (Friday, August 28, 2026)]
[Rules and Regulations]
[Pages 55462-55473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-17622]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 54
[TD 10049]
RIN 1545-BQ55
DEPARTMENT OF LABOR
Employee Benefits Security Administration
29 CFR Part 2590
RIN 1210-AC17
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 149
[CMS-9897-F2]
RIN 0938-AV15
Federal Independent Dispute Resolution Operations; Correction
AGENCY: Office of Personnel Management; Internal Revenue Service,
Department of the Treasury; Employee Benefits Security Administration,
Department of Labor; Centers for Medicare & Medicaid Services,
Department of Health and Human Services.
ACTION: Correcting amendment.
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SUMMARY: This document corrects typographical errors and omissions in
the final rule that appeared in the June 4, 2026, Federal Register
titled ``Federal Independent Dispute Resolution Operations'' (referred
to hereafter as the ``IDR final rule''). The effective date of the IDR
final rule was August 3, 2026.
DATES:
[[Page 55463]]
Effective date: This correcting amendment is effective on August
28, 2026.
Applicability date: The corrections indicated in this document are
applicable beginning on August 3, 2026.
FOR FURTHER INFORMATION CONTACT: Cameron Stokes, Office of Personnel
Management, at (202) 936-0162; Alexander Krupnick, Internal Revenue
Service, Department of the Treasury, at (202) 317-5500; Elizabeth
Schumacher or Rebecca Miller, Employee Benefits Security
Administration, Department of Labor, at (202) 693-8335; Camille Henley,
Centers for Medicare & Medicaid Services, Department of Health and
Human Services, at (410) 786-1492.
SUPPLEMENTARY INFORMATION:
I. Background
In FR Doc. 2026-11140 of June 4, 2026 (91 FR 33900), there were
typographical errors and omissions that are identified and corrected in
this correcting document.
II. Summary of Errors in Regulations Text
On page 34047, in amendatory instruction 6.a. for Sec. 54.9816-6,
we did not specify ``introductory text'' after paragraph (a) and
therefore, regulation text was inadvertently omitted.
On page 34054, Sec. 54.9816-8(c)(5), we inadvertently omitted
regulation text for paragraphs (c)(5)(vii)(A)(1) and (2) after
paragraph (c)(5)(vii)(A) introductory text.
On page 34057, Sec. 54.9816-8(h)(1), we inadvertently included the
word ``revised''.
On page 34057, Sec. 54.9816-8(h)(3), we incorrectly formatted the
second cross-reference to paragraph (c)(1) of that section.
On page 34057, Sec. 54.9816-8(h)(4), we incorrectly formatted the
cross-references to paragraphs (c)(3)(i) and (c)(3)(ii)(C) and (D) and
paragraphs (c)(2), (c)(3)(ii)(A) and (B), and (c)(4) of that section.
On page 34057, Sec. 54.9816-8(h)(5), we incorrectly formatted the
cross-references to paragraphs (c)(5)(i) and (ii) and (c)(5)(vii)(B)
and (C) of that section.
On page 34057, Sec. 54.9816-8(h)(9), we incorrectly formatted the
second cross-reference to paragraph (g) of that section.
On page 34057, Sec. 54.9816-8(h)(10), we inadvertently used the
word ``section'' instead of the word ``requirements'' in a cross-
reference to that section.
On pages 34059 through 34060, in amendatory instructions 13.a.
through 13.h. for Sec. 2590.716-8, we included instructions for
individual revisions to paragraph (b) rather than stating that
paragraph (b) was being revised in its entirety.
On page 34060, in amendatory instruction 13.l. for Sec. 2590.716-
8, we included instructions for individual revisions to paragraph
(c)(4) rather than stating that paragraph (c)(4) was being revised in
its entirety, and we inadvertently omitted the revision to paragraph
(c)(5)(iii).
On page 34063, Sec. 2590.716-8(c)(1)(i), we incorrectly formatted
the cross-reference to paragraph (b)(2)(iii)(A)(11) of that section.
On page 34065, Sec. 2590.716-8(c)(4)(i), we incorrectly formatted
the cross-reference to that paragraph.
On page 34066, Sec. 2590.716-8(c)(5)(ii)(A), we incorrectly
formatted the second cross-reference to paragraph (c)(5)(i) of that
section and inadvertently omitted a closing parenthesis.
On page 34066, Sec. 2590.716-8(c)(5)(ii)(B), we incorrectly
formatted the cross-reference to paragraph (c)(5)(vi) of that section.
On page 34066, Sec. 2590.716-8(c)(5)(iii)(D), we inadvertently
referenced ``(c)(4)(v)'' rather than ``(c)(5)(v)''.
On page 34066, we inadvertently omitted the text of Sec. 2590.716-
8(c)(5)(vii)(A)(1) and (2).
On page 34068, Sec. 2590.716-8(h)(1), we inadvertently included
the word ``revised''.
On page 34068, Sec. 2590.716-8(h)(3), we incorrectly formatted the
second cross-reference to paragraph (c)(1) of that section.
On page 34068, Sec. 2590.716-8(h)(4), we incorrectly formatted the
cross-references to paragraphs (c)(3)(i) and (c)(3)(ii)(C) and (D) and
paragraphs (c)(2), (c)(3)(ii)(A) and (B), and (c)(4) of that section.
On page 34068, Sec. 2590.716-8(h)(5), we incorrectly formatted the
cross-references to paragraphs (c)(5)(i) and (ii) and (c)(5)(vii)(B)
and (C) of that section.
On page 34068, Sec. 2590.716-8(h)(9), we incorrectly formatted the
second cross-reference to paragraph (g) of that section.
On page 34068, Sec. 2590.716-8(h)(10), we inadvertently used the
word ``section'' instead of the word ``requirements'' in a cross-
reference to that section.
On page 34069, Sec. 2590.716-9(c)(2), we inadvertently referenced
``2590.716A-6'' rather than ``2590.716-6A''.
On page 34076, Sec. 149.510(c)(4)(i) we stated ``of this section''
to an already cross-referenced paragraph and inadvertently included an
asterisks placeholder.
On page 34076, Sec. 149.510(c)(5)(i) we inadvertently included an
asterisks placeholder.
On page 34077, Sec. 149.510(c)(5)(ii)(B), we inadvertently omitted
the word ``paragraph''.
On page 34077, Sec. 149.510(c)(5)(iii)(D), we inadvertently
referenced ``(c)(4)(v)'' rather than ``(c)(5)(v)''.
On page 34077, Sec. 149.510(c)(5)(vii)(A), we inadvertently
included an asterisks placeholder.
On page 34077, Sec. 149.510(c)(5)(vii)(C), we inadvertently
italicized ``(c)(5)(vii)(C)''.
On page 34078, Sec. 149.510(c)(5)(vii), we inadvertently included
an asterisks placeholder.
On page 34079, Sec. 149.510(h)(1), we inadvertently included the
word ``revised''.
On page 34079, Sec. 149.510(h)(3), we incorrectly formatted the
second cross-reference to paragraph (c)(1) of that section.
On page 34079, Sec. 149.510(h)(4), we incorrectly formatted the
cross-references to paragraphs (c)(3)(i) and (c)(3)(ii)(C) and (D) and
paragraphs (c)(2), (c)(3)(ii)(A) and (B), and (c)(4) of that section.
On page 34079, Sec. 149.510(h)(5), we incorrectly formatted the
cross-references to paragraphs (c)(5)(i) and (ii) and (c)(5)(vii)(B)
and (C) of that section.
On page 34079, Sec. 149.510(h)(9), we incorrectly formatted the
second cross-reference to paragraph (g) of that section.
On page 34079, Sec. 149.510(h)(10), we inadvertently used the word
``section'' instead of the word ``requirements'' in a cross-reference
to that section.
Due to the errors noted in this correcting amendment for Sec.
149.510(c) and incomplete regulations text in the IDR final rule, we
are including the regulations text for paragraph (c) in its entirety.
III. Waiver of Proposed Rulemaking and Delay in Effective Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 551, et
seq.), a general notice of proposed rulemaking and an opportunity for
public comment is generally required before the promulgation of
regulations. The APA also generally requires that a final rule be
effective no sooner than 30 days after the date of publication in the
Federal Register.
Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions
from the APA notice and comment and delay in effective date
requirements. Section 553(b)(B) of the APA authorizes an
[[Page 55464]]
agency to dispense with normal notice and comment rulemaking procedures
for good cause if the agency makes a finding that the notice and
comment process is impracticable, unnecessary, or contrary to the
public interest and includes a statement of the finding and the reasons
for it in the rule. Similarly, section 553(d)(3) of the APA allows the
agency to avoid the 30-day delay in effective date where good cause is
found and the agency includes in the rule a statement of the finding
and the reasons for it.
The Departments are publishing this technical correction without
advance notice or an opportunity for comment because notice and comment
would be unnecessary under the APA, 5 U.S.C. 553(b)(B). The Departments
are also waiving the 30-day delay in effective date for these
corrections because a delayed effective date would be contrary to the
public interest under the APA, 5 U.S.C. 553(d)(3).
This document corrects technical and typographical errors made in
the final rules, which were published in accordance with the APA after
the Departments proposed the rules and provided the public with an
opportunity to comment on the proposals. The corrections contained in
this document do not make any substantive changes to the policies
adopted in the final rules. Where this document makes technical and
typographical corrections to the amendatory instructions of the
regulations text and regulatory text, it makes no changes to any
substantive requirements. Where this document makes substantive changes
to the regulatory text to correct typographical errors, the changes
reflect the policies described in the proposed and final rules which
were subject to notice and comment as required under the APA. If the
corrections in this document were proposed and subjected to notice and
comment, there would be nothing of substance on which the public could
comment. Therefore, the Departments find that notice and comment would
be unnecessary and there is good cause to waive the notice and comment
requirement under the APA, 5 U.S.C. 553(b)(B).
The Departments are also waiving the 30-day delay in effective date
for these corrections. It is in the public interest to ensure that the
final rules setting forth requirements for group health plans, health
insurance issuers offering group or individual health insurance
coverage, providers, facilities, and providers of air ambulance
services relating to participation in the Federal IDR process
accurately describe the Departments' policies as of the date they take
effect. Therefore, the Departments find that delaying the effective
date of these corrections beyond the August 3, 2026, effective date of
the final rules would be contrary to the public interest. In doing so,
the Departments find good cause to waive the 30-day delay in the
effective date.
List of Subjects
26 CFR Part 54
Excise taxes, Pensions, Reporting and recordkeeping requirements.
29 CFR Part 2590
Continuation coverage, Disclosure, Employee benefit plans, Group
health plans, Health care, Health insurance, Medical child support,
Reporting and recordkeeping requirements.
45 CFR Part 149
Balance billing, Health care, Health insurance, Reporting and
recordkeeping requirements, State regulation of health insurance,
Surprise billing, Transparency in coverage.
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Accordingly, 26 CFR part 54 is corrected by making the following
correcting amendments:
PART 54--PENSION EXCISE TAXES
0
Par. 1. The authority citation for part 54 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
* * * * *
0
Par. 2. Section 54.9816-6 is amended by revising paragraph (a) to read
as follows:
Sec. 54.9816-6 Methodology for calculating qualifying payment amount.
(a) Definitions. For further guidance, see 29 CFR 2590.716-6(a)
introductory text through (a)(17).
(1)-(17) [Reserved]
(18) Downcode means the alteration by a plan or issuer of a service
code to another service code, or the alteration, addition, or removal
by a plan or issuer of a modifier, if the changed code or modifier is
associated with a lower qualifying payment amount than the service code
or modifier billed by the provider, facility, or provider of air
ambulance services.
* * * * *
0
Par. 3. Section 54.9816-8 is amended--
0
a. By revising paragraph (c)(5)(vii)(A);
0
b. In paragraph (h)(1), by removing the word ``revised'' before
``definition for batched'';
0
c. In paragraph (h)(3), by removing the phrase ``the modifications at
paragraph (c)(1) of this section are'' and adding in its place
``paragraph (c)(1) of this section is'';
0
d. In paragraph (h)(4), by removing the phrases ``The modifications at
paragraphs'' and ``The amendments at paragraphs'' and adding in their
place ``Paragraphs'';
0
e. In paragraph (h)(5), by removing the phrase ``The modifications at
paragraphs'' and adding in its place ``Paragraphs'';
0
f. In paragraph (h)(9), by removing the phrase ``The modifications at
paragraph (g) of this section are'' and adding in its place ``Paragraph
(g) of this section is''; and
0
g. In paragraph (h)(10), by removing the phrase ``the corresponding
section of Sec. 54.9816-8'' and adding in its place ``the
corresponding requirements of Sec. 54.9816-8''.
The revision reads as follows:
Sec. 54.9816-8 Independent dispute resolution process.
* * * * *
(c) * * *
(5) * * *
(vii) * * *
(A) Binding. A determination made by a certified IDR entity under
paragraph (c)(5)(ii) of this section:
(1) Is binding upon the parties, in the absence of fraud or
evidence of intentional misrepresentation of material facts presented
to the certified IDR entity regarding the claim; and
(2) Is not subject to judicial review, except in a case described
in any of paragraphs (1) through (4) of section 10(a) of title 9,
United States Code.
* * * * *
DEPARTMENT OF LABOR
Employee Benefits Security Administration
For the reasons stated in the preamble, the Department of Labor
amends 29 CFR part 2590 by making the following correcting amendments:
PART 2590--RULES AND REGULATIONS FOR GROUP HEALTH PLANS
0
4. The authority citation for part 2590 continues to read as follows:
Authority: 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-
1183, 1181 note, 1185, 1185a-n, 1191, 1191a, 1191b, and 1191c; sec.
101(g), Pub. L. 104-191, 110 Stat. 1936; sec. 401(b), Pub. L. 105-
200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110-
343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Pub. L. 111-148,
124 Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029;
[[Page 55465]]
Division M, Pub. L. 113-235, 128 Stat. 2130; Pub. L. 116-260, 134
Stat. 1182; Secretary of Labor's Order 1-2011, 77 FR 1088 (Jan. 9,
2012).
0
5. Section 2590.716-8 is amended--
0
a. By revising paragraph (b);
0
b. In paragraph (c)(1)(i) introductory text, by removing the phrase
``subordinate paragraph (b)(2)(iii)(A)(11) thereof'' and adding in its
place ``paragraph (b)(2)(iii)(A)(11) of this section'';
0
c. In paragraph (c)(4)(i) introductory text, by removing the phrase
``of this section'';
0
d. In paragraph (c)(5)(ii)(A) introductory text, by removing the
regulatory citation ``29 CFR 2590.716-8(c)(5)(i)'' and adding in its
place ``paragraph (c)(5)(i) of this section)'';
0
e. In paragraph (c)(5)(ii)(B), by adding the word ``paragraph'' before
``(c)(5)(vi) of this section'';
0
f. By revising paragraph (c)(5)(iii);
0
g. By adding paragraphs (c)(5)(vii)(A)(1) and (2);
0
h. In paragraph (h)(1), by removing the word ``revised'' before
``definition for batched'';
0
i. In paragraph (h)(3), by removing the phrase ``the modifications at
paragraph (c)(1) of this section are'' and adding in its place
``paragraph (c)(1) of this section is'';
0
j. In paragraph (h)(4), by removing the phrases ``The modifications at
paragraphs'' and ``The amendments at paragraphs'' and adding in their
place ``Paragraphs'';
0
k. In paragraph (h)(5), by removing the phrase ``The modifications at
paragraphs'' and adding in its place ``Paragraphs'';
0
l. In paragraph (h)(9), by removing the phrase ``The modifications at
paragraph (g) of this section are'' and adding in its place ``Paragraph
(g) of this section is''; and
0
m. In paragraph (h)(10), by removing the phrase ``the corresponding
section of Sec. 2590.716-8'' and adding in its place ``the
corresponding requirements of Sec. 2590.716-8''.
The revisions and additions read as follows:
Sec. 2590.716-8 Independent dispute resolution process.
* * * * *
(b) Determination of payment amount through open negotiation and
initiation of the Federal IDR process--(1) Determination of payment
amount through open negotiation--(i) In general. For an item or service
that meets the requirements of paragraph (a)(2)(xi)(A) of this section,
the provider, facility, or provider of air ambulance services or the
group health plan or health insurance issuer offering group or
individual health insurance coverage may, during the 30-business-day
period beginning on the day the provider, facility, or provider of air
ambulance services receives an initial payment or notice of denial of
payment regarding the item or service, initiate a 30-business-day open
negotiation period for purposes of determining the out-of-network rate
for such item or service. To initiate the open negotiation period, a
party must submit a written open negotiation notice with the content
specified in paragraph (b)(1)(ii) of this section to the other party
and to the Secretary in the manner specified in paragraph (b)(3) of
this section. The 30-business-day open negotiation period begins on the
day on which the party first submits the open negotiation notice,
including the remittance advice documentation specified in paragraph
(b)(1)(ii)(A)(12) of this section to the other party and the Secretary.
The party in receipt of the open negotiation notice must provide to the
party that initiated open negotiation and to the Secretary in the
manner specified in paragraph (b)(3) of this section, as soon as
practicable, but no later than the 15th business day of the 30-
business-day open negotiation period, a written notice and supporting
documentation in response to the open negotiation notice, as specified
in paragraph (b)(1)(iii)(A) of this section.
(ii) Open negotiation notice--(A) Content. The open negotiation
notice must include, for the item or service that is the subject of the
open negotiation notice, information about the item or service and the
parties, including:
(1) Information sufficient to identify the provider, facility, or
provider of air ambulance services, including the name and current
contact information (including the legal business name, email address,
phone number, and mailing address) as provided with the claim form
submitted by the provider, facility, or provider of air ambulance
services to the plan or issuer, and the applicable National Provider
Identifier (NPI);
(2) Information sufficient to identify the plan or issuer,
including the plan's or issuer's registration number, as required under
Sec. 2590.716-9, or an attestation from the party submitting the open
negotiation notice that the plan's or issuer's registration number was
not provided on any remittance advice associated with the initial
payment or notice of denial of payment for the item or service; the
legal business name of the plan or issuer (or, in the case of a self-
insured group health plan that does not have a legal business name, the
legal business name of the plan sponsor), as well as the current
contact information (name, email address, phone number, and mailing
address) of the plan or issuer as provided with any remittance advice
associated with the initial payment or notice of denial of payment for
the item or service; and if the party submitting the open negotiation
notice is a plan or issuer, the plan type (for example, self-insured or
fully-insured);
(3) The name and contact information (including the legal business
name, email address, phone number, and mailing address) for any third
party representing the party submitting the open negotiation notice,
and an attestation that the third party has the authority to act on
behalf of the party it represents in the open negotiation;
(4) Information sufficient to identify the item or service,
including: the date(s) the item or service was furnished and, if the
party submitting the open negotiation notice is a provider, facility,
or provider of air ambulance services, the date(s) that the provider,
facility, or provider of air ambulance services received the initial
payment or notice of denial of payment for the item or service from the
plan or issuer; the type of item or service (specifically, whether the
item or service is an emergency service as defined in Sec. 2590.716-
4(c)(2)(i) or (ii), a non-emergency service as described in Sec.
2590.716-5(b), or an air ambulance service as defined in Sec.
2590.716-3); whether the service is a professional service or facility-
based service; the State where the item or service was furnished; the
claim number; the service code; and information to identify the
location where the item or service was furnished (such as, place of
service code or bill type code);
(5) The initial payment amount (including $0 if payment is denied);
(6) The qualifying payment amount, if provided in a remittance
advice associated with the initial payment or notice of denial of
payment, or if the party submitting the open negotiation notice is a
plan or issuer;
(7) An offer of an out-of-network rate for each item or service;
(8) If the party submitting the open negotiation notice is a plan
or issuer, the amount of cost sharing imposed for the item or service,
if any;
(9) If the party submitting the open negotiation notice is a
provider or facility, a statement that the items and services do not
qualify for the notice and consent exception described at 45 CFR
149.410(b) or 149.420(c) through (i);
(10) A statement that the provider, facility, or provider of air
ambulance
[[Page 55466]]
services was a nonparticipating provider, nonparticipating emergency
facility, or nonparticipating provider of air ambulance services on the
date the item or service was furnished;
(11) General information listed in the standard open negotiation
notice developed by the Secretary pursuant to paragraph (b)(3) of this
section describing the open negotiation period and the Federal IDR
process (including a description of the purpose of the open negotiation
period and Federal IDR process and key deadlines in the open
negotiation period and Federal IDR process); and
(12) A copy of any remittance advice associated with the initial
payment or notice of denial of payment for the item or service.
(B) [Reserved]
(iii) Open negotiation response notice--(A) Content. The response
to the open negotiation notice must include, for the item or service
that is the subject of the open negotiation response notice,
information about the item or service and the parties, including:
(1) Information sufficient to identify the provider, facility, or
provider of air ambulance services, including the name and current
contact information (including the legal business name, email address,
phone number, and mailing address) as provided with the claim form
submitted by the provider, facility, or provider of air ambulance
services to the plan or issuer, and the applicable NPI;
(2) Information sufficient to identify the plan or issuer,
including the plan's or issuer's registration number, as required under
Sec. 2590.716-9, or an attestation from the party submitting the open
negotiation response notice that the plan's or issuer's registration
number was not provided on any remittance advice associated with the
initial payment or notice of denial of payment for the item or service,
as well as the legal business name of the plan or issuer (or, in the
case of a self-insured group health plan that does not have a legal
business name, the legal business name of the plan sponsor), the
current contact information (name, email address, phone number, and
mailing address) of the plan or issuer as provided with any remittance
advice associated with the initial payment or notice of denial of
payment for the item or service; and if the party submitting the open
negotiation response notice is a plan or issuer, the plan type (for
example, self-insured or fully-insured);
(3) The name and contact information (including the legal business
name, email address, phone number, and mailing address) for any third
party representing the party submitting the open negotiation response
notice, and an attestation that the third party has the authority to
act on behalf of the party it represents in the open negotiation;
(4) Information sufficient to identify the item or service included
in the open negotiation notice, including the date(s) the item or
service was furnished, and if the party submitting the open negotiation
response notice is a provider, facility, or provider of air ambulance
services, the date(s) that the provider, facility, or provider of air
ambulance services received the initial payment or notice of denial of
payment for the item or service from the plan or issuer, and the claim
number;
(5) If the party submitting the open negotiation response notice is
a plan or issuer, a statement as to whether it agrees that the initial
payment amount (including $0 if payment is denied) and the qualifying
payment amount reflected in the open negotiation notice accurately
reflect the initial payment amount and qualifying payment amount
disclosed with the initial payment for the item or service, and if not,
or if the open negotiation notice indicates that the initial payment
amount or qualifying payment amount was not communicated by the plan or
issuer in a remittance advice associated with the initial payment or
notice of denial of payment, the initial payment amount (including $0
if payment is denied) and/or qualifying payment amount it believes to
be correct, and documentation to support the statement (for example,
the remittance advice confirming the qualifying payment amount);
(6) If the party submitting the open negotiation response notice is
a plan or issuer, the amount of cost sharing imposed for the item or
service, if any;
(7) If the party submitting the open negotiation response notice is
a provider or facility, a statement that the items and services do not
qualify for the notice and consent exception described at 45 CFR
149.410(b) or 149.420(c) through (i);
(8) For each item or service, either a statement and supporting
documentation that explains why the item or service is not subject to
the Federal IDR process or a statement agreeing that the item or
service is subject to the Federal IDR process;
(9) A statement as to whether any of the information provided in
the open negotiation notice is inaccurate and the basis for the
statement, as well as supporting documentation; and
(10) A statement confirming that the initial payment or notice of
denial of payment or other remittance advice reflected in the open
negotiation notice under paragraph (b)(1)(ii)(A)(12) of this section is
accurate, or, if inaccurate, a copy of the accurate remittance advice
associated with the initial payment or notice of denial of payment for
the item or service.
(B) [Reserved]
(2) Initiating the Federal IDR process--(i) In general. Either
party may initiate the Federal IDR process for a qualified IDR item or
service as defined in paragraph (a)(2)(xi) of this section for which
the parties have not agreed on an out-of-network rate by the last day
of the open negotiation period provided for under paragraph (b)(1) of
this section. To initiate the Federal IDR process, a party (the
initiating party) must submit a written notice of IDR initiation,
consistent with paragraph (b)(2)(ii) of this section, to the other
party to the dispute (the non-initiating party) and to the Secretary in
the manner specified in paragraph (b)(3) of this section, during the 4-
business-day period beginning on the first business day after the last
day of the open negotiation period (unless it is otherwise required to
be submitted in the timeframe specified in paragraph (c)(5)(vii)(C) of
this section). The date of IDR initiation is the date the Secretary
receives the notice of IDR initiation described in paragraph (b)(2)(ii)
of this section.
(A) Exception for items and services provided by certain
nonparticipating providers and facilities. A party may not initiate the
Federal IDR process for an item or service if, for that item or
service, the party knows (or reasonably should have known) that the
provider or facility provided notice and received consent under 45 CFR
149.410(b) or 149.420(c) through (i).
(B) [Reserved]
(ii) Notice of IDR initiation--(A) Content. The notice of IDR
initiation must include, for the item or service that is the subject of
the notice, information about the item or service and the parties,
including:
(1) Information sufficient to identify the provider, facility, or
provider of air ambulance services, including the name and current
contact information (including the legal business name, email address,
phone number, and mailing address), and the NPI; and if the initiating
party is a provider, facility, or provider of air ambulance services,
the Taxpayer Identification Number (TIN);
(2) Information sufficient to identify the plan or issuer,
including the plan's or issuer's registration number, as required under
Sec. 2590.716-9, or an
[[Page 55467]]
attestation from the initiating party that the plan's or issuer's
registration number was not provided on any remittance advice
associated with the initial payment or notice of denial of payment for
the item or service; the legal business name of the plan or issuer (or,
in the case of a self-insured group health plan that does not have a
legal business name, the legal business name of the plan sponsor), as
well as the current contact information (name, email address, phone
number, and mailing address) of the plan or issuer as provided with any
remittance advice associated with the initial payment or notice of
denial of payment for the item or service; and if the initiating party
is a plan or issuer, the plan type (for example, self-insured or fully-
insured) and TIN (or, in the case of a plan that does not have a TIN,
the TIN of the plan sponsor);
(3) The name and contact information (including the legal business
name, email address, phone number, TIN, and mailing address) for any
third party representing the initiating party, and an attestation that
the third party has the authority to act on behalf of the party it
represents in the Federal IDR process;
(4) Information sufficient to identify whether the dispute being
initiated includes batched or bundled qualified IDR items or services
as described in paragraph (c)(4) of this section;
(5) Information sufficient to identify the qualified IDR item or
service that is the subject of the notice of IDR initiation, including
the date(s) the qualified IDR item or service was furnished; if the
initiating party is a provider, facility, or provider of air ambulance
services, the date(s) that the provider, facility, or provider of air
ambulance services received the initial payment or notice of denial of
payment for such item or service from the plan or issuer; the date the
open negotiation period under paragraph (b)(1) of this section began;
the type of item or service (specifically, whether the item or service
that meets the requirements of paragraph (a)(2)(xi)(A) of this section
is an emergency service as defined in Sec. 2590.716-4(c)(2)(i) or
(ii), a non-emergency service as described in Sec. 2590.716-5(b), or
an air ambulance service as defined in Sec. 2590.716-3); whether the
service is a professional service or facility-based service; the State
where the item or service was furnished; the claim number; the service
code; and information to identify the location the item or service was
furnished (including place of service code or bill type code);
(6) The initial payment amount (including $0 if payment is denied);
(7) If the initiating party is a plan or issuer, the amount of cost
sharing imposed for the item or service, if any;
(8) The qualifying payment amount, if provided with the initial
payment or notice of denial of payment, or if the initiating party is a
plan or issuer;
(9) If the initiating party is a provider or facility, a statement
that the items and services do not qualify for the notice and consent
exception described at 45 CFR 149.410(b) or 149.420(c) through (i);
(10) A statement that the provider, facility, or provider of air
ambulance services was a nonparticipating provider, a nonparticipating
emergency facility, or a nonparticipating provider of air ambulance
services on the date the item or service was furnished;
(11) Attestation that the item or service under dispute is a
qualified IDR item or service as defined in paragraph (a)(2)(xi) of
this section and is eligible for the Federal IDR process, and the basis
for the attestation;
(12) General information listed in the standard notice of IDR
initiation developed by the Secretary under paragraph (b)(3) of this
section describing the Federal IDR process (including a description of
the purpose of the Federal IDR process and key deadlines in the Federal
IDR process);
(13) A copy of any remittance advice associated with the initial
payment or notice of denial of payment for the item or service; and
(14) Preferred certified IDR entity.
(B) [Reserved]
(iii) Notice of IDR initiation response. The non-initiating party
must provide to the initiating party and the Secretary in the manner
specified in paragraph (b)(3) of this section within 3 business days
after the date of IDR initiation, a written notice and supporting
documentation in response to the notice of IDR initiation, as specified
in paragraph (b)(2)(iii)(A) of this section.
(A) Content. The notice of IDR initiation response must include,
for the item or service that is the subject of the notice, information
about the item or service and the parties, including:
(1) Information sufficient to identify the provider, facility, or
provider of air ambulance services, including the name and current
contact information (including the legal business name, email address,
phone number, and mailing address), and the NPI; and if the non-
initiating party is a provider, facility, or provider of air ambulance
services, the TIN;
(2) Information sufficient to identify the plan or issuer,
including the plan's or issuer's registration number, as required under
Sec. 2590.716-9, or an attestation from the non-initiating party that
the plan's or issuer's registration number was not provided on any
remittance advice associated with the initial payment or notice of
denial of payment for the item or service; the legal business name of
the plan or issuer (or, in the case of a self-insured group health plan
that does not have a legal business name, the legal business name of
the plan sponsor), as well as the current contact information (name,
email address, phone number, and mailing address) of the plan or issuer
as provided with any remittance advice associated with the initial
payment or notice of denial of payment; and if the non-initiating party
is a plan or issuer, the plan type (for example, self-insured or fully-
insured) and TIN (or, in the case of a plan that does not have a TIN,
the TIN of the plan sponsor);
(3) The name and contact information (including the legal business
name, email address, phone number, TIN, and mailing address) for any
third party representing the non-initiating party, and an attestation
that the third party has the authority to act on behalf of the party it
represents in the Federal IDR process;
(4) Information sufficient to identify each item or service
included in the notice of IDR initiation, including the date(s) the
item or service was furnished and if the non-initiating party is a
provider, facility, or provider of air ambulance services, the date(s)
that the provider, facility, or provider of air ambulance services
received the initial payment or notice of denial of payment for such
item or service from the plan or issuer, and the claim number;
(5) If the non-initiating party is a plan or issuer, a statement as
to whether the non-initiating party agrees that the initial payment
(including $0 if payment is denied) and the qualifying payment amount
reflected in the notice of IDR initiation is accurate for the item or
service that is the subject of the dispute, and if not, the initial
payment amount (including $0 if payment is denied) and/or qualifying
payment amount it believes to be correct, and documentation to support
the statement (for example, the remittance advice confirming the
qualifying payment amount);
(6) If the non-initiating party is a plan or issuer, the amount of
cost sharing imposed for the item or service, if any;
(7) If the non-initiating party is a provider or facility, a
statement that the items and services do not qualify for the notice and
consent exception described at 45 CFR 149.410(b) or 149.420(c) through
(i);
[[Page 55468]]
(8) For each item or service that is the subject of the dispute,
either an attestation that the item or service is a qualified IDR item
or service as defined in paragraph (a)(2)(xi) of this section and is
eligible for the Federal IDR process, or for each item or service that
the non-initiating party asserts is not a qualified IDR item or service
that is eligible for the Federal IDR process, an explanation and
documentation to support the assertion;
(9) A statement confirming that the remittance advice associated
with the initial payment or notice of denial of payment provided by the
initiating party under paragraph (b)(2)(ii)(A)(13) of this section is
accurate, or if inaccurate, a copy of the accurate remittance advice
associated with the initial payment or notice of denial of payment for
the item or service;
(10) A statement as to whether any of the information provided in
the notice of IDR initiation is inaccurate and the basis for the
statement, as well as any supporting documentation; and
(11) A statement as to whether the non-initiating party agrees or
objects to the initiating party's preferred certified IDR entity. If
the non-initiating party objects to the initiating party's preferred
certified IDR entity, the notice of IDR initiation response must
include the name of an alternative preferred certified IDR entity and,
if applicable, an explanation of any conflict of interest with the
initiating party's preferred certified IDR entity.
(B) [Reserved]
(3) Manner. A party furnishing notices as required under paragraphs
(b)(1)(ii) and (iii) and (b)(2)(ii) and (iii) of this section must
furnish the notices using the standard forms developed by the Secretary
and must furnish the notices and supporting documentation to the other
party and the Secretary through the Federal IDR portal.
(c) * * *
(5) * * *
(iii) Considerations in determination. In determining which offer
to select:
(A) The certified IDR entity must consider the qualifying payment
amount(s) for the applicable year for the same or similar item or
service.
(B) The certified IDR entity must consider information submitted by
a party that relates to the following circumstances:
(1) The level of training, experience, and quality and outcomes
measurements of the provider or facility that furnished the qualified
IDR item or service (such as those endorsed by the consensus-based
entity authorized in section 1890 of the Social Security Act).
(2) The market share held by the provider or facility or that of
the plan or issuer in the geographic region in which the qualified IDR
item or service was provided.
(3) The acuity of the participant, beneficiary, or enrollee
receiving the qualified IDR item or service, or the complexity of
furnishing the qualified IDR item or service to the participant,
beneficiary, or enrollee.
(4) The teaching status, case mix, and scope of services of the
facility that furnished the qualified IDR item or service, if
applicable.
(5) Demonstration of good faith efforts (or lack thereof) made by
the provider or facility or the plan or issuer to enter into network
agreements with each other, and, if applicable, contracted rates
between the provider or facility, as applicable, and the plan or
issuer, as applicable, during the previous 4 plan years.
(C) The certified IDR entity must also consider information
provided by a party in response to a request by the certified IDR
entity under paragraph (c)(5)(i)(A)(2) of this section that relates to
the offer for the payment amount for the qualified IDR item or service
that is the subject of the payment determination and that does not
include information on factors described in paragraph (c)(5)(v) of this
section.
(D) The certified IDR entity must also consider additional
information submitted by a party that relates to the offer for the
payment amount for the qualified IDR item or service that is the
subject of the payment determination and that does not include
information on factors described in paragraph (c)(5)(v) of this
section.
* * * * *
(vii) * * *
(A) * * *
(1) Is binding upon the parties, in the absence of fraud or
evidence of intentional misrepresentation of material facts presented
to the certified IDR entity regarding the claim; and
(2) Is not subject to judicial review, except in a case described
in any of paragraphs (1) through (4) of section 10(a) of title 9,
United States Code.
* * * * *
Sec. 2490.716-9 [Amended]
0
6. Section 2590.716-9 is amended in paragraph (c)(2) by removing the
reference ``2590.716A-6'' and adding in its place ``2590.716-6A''.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
For the reasons stated in the preamble, the Department of Health
and Human Services amends 45 CFR part 149 by making the following
correcting amendments:
PART 149--SURPRISE BILLING AND TRANSPARENCY REQUIREMENTS
0
7. The authority citation for part 149 continues to read as follows:
Authority: 42 U.S.C. 300gg-92 and 300gg-111 through 300gg-139,
as amended.
0
8. Section 149.510 is amended--
0
a. By revising paragraph (c);
0
b. In paragraph (h)(1), by removing the word ``revised'' before
``definition for batched'';
0
c. In paragraph (h)(3), by removing the phrase ``the modifications at
paragraph (c)(1) of this section are'' and adding in its place
``paragraph (c)(1) of this section is'';
0
d. In paragraph (h)(4), by removing the phrases ``The modifications at
paragraphs'' and ``The amendments at paragraphs'' and adding in their
place ``Paragraphs'';
0
e. In paragraph (h)(5), by removing the phrase ``The modifications at
paragraphs'' and adding in its place ``Paragraphs'';
0
f. In paragraph (h)(9), by removing the phrase ``The modifications at
paragraph (g) of this section are'' and adding in its place ``Paragraph
(g) of this section is''; and
0
g. In paragraph (h)(10), by removing the phrase ``the corresponding
section of Sec. 149.510'' and adding in its place ``the corresponding
requirements of Sec. 149.510''.
The revision reads as follows:
Sec. 149.510 Independent dispute resolution process.
* * * * *
(c) Federal IDR process following initiation--(1) Selection of
certified IDR entity--(i) Preliminary selection of the certified IDR
entity. Within 3 business days after the date of IDR initiation, the
non-initiating party must agree or object to the preferred certified
IDR entity identified in the notice of IDR initiation by submitting the
notice of IDR initiation response described in paragraph (b)(2)(iii) of
this section, which contains the information described in paragraph
(b)(2)(iii)(A)(11) of this section.
(A) If the non-initiating party agrees or fails to respond to the
selection of the initiating party's preferred certified IDR entity in
the manner and timeframe described in this paragraph (c)(1)(i), the
initiating party's preferred certified IDR entity will be considered
jointly selected on the third business day after the date of IDR
initiation.
(B) If the non-initiating party objects to the selection of the
initiating party's
[[Page 55469]]
preferred certified IDR entity by designating an alternative preferred
certified IDR entity in the manner and timeframe described in this
paragraph (c)(1)(i), the initiating party may then agree or object to
the non-initiating party's alternative preferred certified IDR entity
by submitting the notice of certified IDR entity selection in the
manner specified in paragraph (c)(1)(i)(D) of this section.
(1) If the initiating party agrees to the non-initiating party's
alternative preferred certified IDR entity within 3 business days after
the date of IDR initiation, the alternative preferred certified IDR
entity will be considered jointly selected by the parties.
(2) If the non-initiating party submits the notice of IDR
initiation response on the first or second business day after the date
of IDR initiation, and the initiating party fails to respond within 3
business days after the date of IDR initiation, the alternative
preferred certified IDR entity will be considered jointly selected by
the parties.
(3) If the non-initiating party submits the notice of IDR
initiation response on the third business day after the date of IDR
initiation and the initiating party fails to respond on the same day,
selection will proceed pursuant to paragraph (c)(1)(i)(C) of this
section.
(C) If a certified IDR entity is not jointly selected under
paragraph (c)(1)(i)(A) or (B) of this section, either party may select
an alternative preferred certified IDR entity by submitting the notice
of certified IDR entity selection in the manner specified in paragraph
(c)(1)(i)(D) of this section, until the earlier of the date that the
parties agree on the alternative preferred certified IDR entity or the
deadline for joint selection, which is 3 business days after the date
of IDR initiation. Once a party submits a notice of certified IDR
entity selection, it may not submit another notice of certified IDR
entity selection until it receives a responding notice of certified IDR
entity selection from the other party.
(1) If a party submits a notice of certified IDR entity selection
to the other party on the first or second business day after the date
of IDR initiation and the party in receipt of the notice agrees or
fails to respond to the alternative preferred certified IDR entity by
the third business day after the date of IDR initiation, the
alternative preferred certified IDR entity will be considered jointly
selected by the parties.
(2) If a party submits a notice of certified IDR entity selection
to the other party on the third business day after the date of IDR
initiation and the party last in receipt of the notice agrees to the
alternative preferred certified IDR entity on the same day, the
alternative preferred certified IDR entity will be considered jointly
selected by the parties.
(3) If a party submits a notice of certified IDR entity selection
to the other party on the third business day after the date of IDR
initiation, and the party last in receipt of the notice fails to
respond to the alternative preferred certified IDR entity on the same
day, the parties will have failed to jointly select a certified IDR
entity.
(D) To notify the other party and the Secretary of an agreement or
objection to an alternative preferred certified IDR entity as described
in paragraph (c)(1)(i)(C) of this section, a party must furnish a
notice of certified IDR entity selection, using the standard form
developed by the Secretary, to the other party and the Secretary
through the Federal IDR portal within 3 business days after the date of
IDR initiation. The notice of certified IDR entity selection must
include a statement indicating the party's agreement with or objection
to the other party's alternative preferred certified IDR entity and, if
applicable, an explanation of any conflict of interest with the
alternative preferred certified IDR entity, and the name of another
alternative preferred certified IDR entity. However, in the event the
conditions for failure to jointly select a certified IDR entity apply,
selection will proceed in accordance with paragraph (c)(1)(ii) of this
section.
(ii) Failure to jointly select a certified IDR entity. If the
parties fail to jointly select a certified IDR entity within 3 business
days after the date of IDR initiation, the Secretary will select a
certified IDR entity. The parties will have failed to jointly select a
certified IDR entity if, by the end of the third business day after the
date of IDR initiation, the party last in receipt of the notice of IDR
initiation response or the notice of certified IDR entity selection has
received an objection to their preferred or alternative preferred
certified IDR entity in the applicable notice. Alternatively, the
parties will have failed to jointly select a certified IDR entity if
the notice of IDR initiation response or the notice of certified IDR
entity selection is submitted to the other party on the third business
day after the date of IDR initiation and the party in receipt of the
notice fails to respond to the alternative preferred certified IDR
entity on the same day.
(A) In selecting the certified IDR entity, the Secretary will first
confirm whether a party submitted the notice of IDR initiation response
or the notice of certified IDR entity selection with an alternative
preferred certified IDR entity on the third business day after the date
of IDR initiation without the other party's agreement to the selection.
If either notice was provided on the third business day after the date
of IDR initiation without the other party's agreement to the
alternative preferred certified IDR entity by the end of the third
business day after the date of IDR initiation, the Secretary will
provide the party last in receipt of the applicable notice, as of the
end of the third business day after the date of IDR initiation, 2
additional business days to agree or object to the other party's
alternative preferred certified IDR entity selection.
(1) If the party last in receipt of the applicable notice, as of
the end of the third business day after the date of IDR initiation,
agrees with the other party's alternative preferred certified IDR
entity and notifies the Secretary of the agreement, or fails to
respond, in the Federal IDR portal by the fifth business day after the
date of IDR initiation, the Secretary will select the final alternative
preferred certified IDR entity selected in the applicable notice.
(2) If the party last in receipt of the applicable notice, as of
the end of the third business day after the date of IDR initiation,
notifies the Secretary of its objection to the alternative preferred
certified IDR entity by the fifth business day after the date of IDR
initiation, the Secretary will randomly select a certified IDR entity
from among the certified IDR entities (other than the preferred
certified IDR entity and any alternative preferred certified IDR entity
previously selected in such dispute by a party, unless there is no
other certified IDR entity available to select) that charge a fee
within the allowed range of certified IDR entity fees, not later than
the sixth business day after the date of IDR initiation. If there are
insufficient certified IDR entities that charge a fee within the
allowed range of certified IDR entity fees available to arbitrate the
dispute, the Secretary will select a certified IDR entity that has
received approval, as described in paragraph (e)(2)(vii)(A) of this
section, to charge a fee outside of the allowed range of certified IDR
entity fees. In either case, the Secretary will notify the parties of
the preliminary selection of the certified IDR entity not later than 6
business days after the date of IDR initiation.
(B) [Reserved]
(iii) Date of preliminary selection of the certified IDR entity.
The date of preliminary selection of the certified IDR entity will be:
[[Page 55470]]
(A) Three business days after the date of IDR initiation if the
parties jointly select a certified IDR entity, as specified in
paragraph (c)(1)(i) of this section; or
(B) Six business days after the date of IDR initiation, if the
parties fail to jointly select a certified IDR entity as specified in
paragraph (c)(1)(ii) of this section.
(iv) Final selection of the certified IDR entity--(A) Conflict-of-
interest review. The certified IDR entity preliminarily selected for a
dispute must review the selection. The selection of the certified IDR
entity will be finalized only if the certified IDR entity attests to
the Secretary that it meets the following requirements:
(1) The certified IDR entity does not have a conflict of interest
as defined in paragraph (a)(2)(iv) of this section;
(2) The certified IDR entity will only assign personnel to a
dispute and make decisions regarding hiring, compensation, termination,
promotion, or other similar matters related to personnel assigned to
the dispute in a manner that is not based upon the likelihood that the
assigned personnel will support a particular party to the dispute; and
(3) The certified IDR entity will not assign any personnel to a
dispute who would have any conflicts of interest, as defined in
paragraph (a)(2)(iv) of this section, regarding any party to the
dispute or whose relationship with a party within the 1 year
immediately preceding the assignment to the dispute would violate the
restrictions on aiding or advising a former employer or principal in a
manner similar to the restrictions set forth in 18 U.S.C. 207(b).
(B) Failure to meet conflict-of-interest requirements. If the
certified IDR entity fails to attest to the Secretary within 3 business
days of the date of preliminary selection of the certified IDR entity
that it meets the requirements of paragraphs (c)(1)(iv)(A)(1) through
(3) of this section, the Secretary will randomly select another
certified IDR entity consistent with paragraph (c)(1)(ii) of this
section. The Secretary will notify the parties of the new randomly
preliminarily selected certified IDR entity no later than 1 business
day after the date of preliminary selection of the certified IDR
entity, no later than 1 business day after the end of the 3-business-
day period.
(C) Date of final selection of the certified IDR entity. If the
certified IDR entity that has been preliminarily selected attests
within 3 business days that it meets the requirements of paragraph
(c)(1)(iv)(A) of this section, the Secretary will notify the parties of
the final selection of the certified IDR entity no later than 1
business day after the certified IDR entity attests that it meets the
conflict-of-interest requirements. The date of final selection of the
certified IDR entity is the date that the Secretary provides this
notice to the parties.
(2) Federal IDR process eligibility review--(i) Federal IDR process
eligibility determination by certified IDR entity. The selected
certified IDR entity must review the information in the notice of IDR
initiation, notice of IDR initiation response, and any additional
information described in paragraph (c)(2)(ii) of this section, and make
a final determination as to whether the item or service is a qualified
IDR item or service (and in the case of a batched dispute, whether the
items or services are qualified IDR items or services), as defined in
paragraph (a)(2)(xi) of this section, that is eligible for the Federal
IDR process. The certified IDR entity must make such a determination
and notify the Secretary and both parties no later than 5 business days
after the date of final selection of the certified IDR entity. If the
certified IDR entity determines that the item or service is not a
qualified IDR item or service that is eligible for the Federal IDR
process, the dispute will be closed, and the selected certified IDR
entity will not take any further action with respect to the dispute. In
the case of a batched dispute, only those items and services determined
to be qualified IDR items or services that are eligible for the Federal
IDR process and that meet the requirements of paragraph (c)(4)(i) of
this section will continue through the Federal IDR process, and the
selected certified IDR entity will not take any further action with
respect to the other items and services included in the batched
dispute.
(ii) Request for additional information. The selected certified IDR
entity may request additional information from either party to a
dispute at any time, including for the purpose of assessing whether a
conflict of interest exists, conducting an eligibility determination,
or making a payment determination.
(A) Upon request, a party must submit the additional information
within 5 business days to the selected certified IDR entity through the
Federal IDR portal. Following a request for additional information, the
time period for the applicable stage of the Federal IDR process will be
tolled until the earlier of the date either all of the requested
information is provided or the 5-business-day period expires, and each
subsequent timeframe in the Federal IDR process will be determined
based on the date of completion of the stage of the Federal IDR process
that was tolled for provision of the requested information.
(B) If a party fails to submit the additional information as
required, the related determination, including the conflict-of-interest
review, eligibility determination, or payment determination, will be
made without the requested information unless a good-cause extension of
the 5-business-day period, as specified in paragraph (g)(1)(i) of this
section, has been provided, and the party subsequently submits the
additional information requested within the extended period. If the
related determination cannot be made because both parties failed to
provide the additional information as required, the dispute will be
considered withdrawn, as specified in paragraph (c)(3)(ii) of this
section.
(3) Authority to continue negotiations or withdraw--(i) Authority
to continue to negotiate. If the parties to the Federal IDR process
agree on an out-of-network rate for a qualified IDR item or service
after providing the notice of IDR initiation to the Secretary required
under paragraph (b)(2)(ii) of this section, but before the certified
IDR entity has made its payment determination, the amount agreed to by
the parties for the qualified IDR item or service will be treated as
the out-of-network rate for the qualified IDR item or service. To the
extent the amount exceeds the initial payment amount and any cost
sharing paid or owed by the participant, beneficiary, or enrollee,
payment must be made directly by the plan or issuer to the
nonparticipating provider, nonparticipating facility, or
nonparticipating provider of air ambulance services not later than 30
calendar days after the date the agreement is reached. In no instance
may either party seek additional payment from the participant,
beneficiary, or enrollee, calculated based on the agreed-upon amount,
in instances in which the out-of-network rate exceeds the qualifying
payment amount. The initiating party must send a notification for the
parties' agreement to the Secretary and the certified IDR entity (if
selected) through the Federal IDR portal as soon as possible, but no
later than 3 business days after the date of the agreement. The
notification must include the dispute number, a statement of the
agreed-on out-of-network rate for the qualified IDR item or service,
and signatures from authorized signatories for both parties.
(ii) Withdrawal of disputes. A dispute may be withdrawn from the
Federal IDR process by the initiating party, the
[[Page 55471]]
Secretary, or a certified IDR entity before a payment determination is
made, if one of the following conditions is met:
(A) The initiating party provides notification through the Federal
IDR portal to the Secretary and the certified IDR entity (if selected)
that both parties to the dispute agree to withdraw the dispute from the
Federal IDR process without agreement on an out-of-network rate. The
notification must include the dispute number, a statement about both
parties' agreement to withdraw, and signatures from authorized
signatories for both parties;
(B) The initiating party provides a standard withdrawal request
notice through the Federal IDR portal to the Secretary, the certified
IDR entity (if selected), and the non-initiating party of its request
to withdraw the dispute from the Federal IDR process, and the non-
initiating party notifies the Secretary, certified IDR entity (if
selected), and the initiating party through the Federal IDR portal of
its agreement to withdraw from the Federal IDR process within 5
business days of the initiating party's request. Provision of the
withdrawal request through the Federal IDR portal pauses the Federal
IDR process for 5 business days or until the non-initiating party
responds, whichever happens first. If the non-initiating party fails to
respond within 5 business days of the initiating party's request, the
non-initiating party will be considered to have agreed to the
withdrawal, and the dispute will be withdrawn;
(C) The certified IDR entity cannot determine eligibility, for
example, because both parties to the dispute are nonresponsive to any
requests for additional information to determine eligibility as
described in paragraph (c)(2)(ii) of this section; or
(D) The certified IDR entity cannot make a payment determination,
for example, because both parties to the dispute have failed to submit
an offer as described in paragraph (c)(5)(i) of this section.
(4) Treatment of batched qualified IDR items and services--(i) In
general. For purposes of encouraging efficiencies (including minimizing
costs) in the Federal IDR process, a certified IDR entity may consider
up to 50 qualified IDR items and services jointly as part of a single
payment determination that is subject to the certified IDR entity fee
for batched disputes, only if the qualified IDR items and services meet
the requirements of this paragraph (c)(4)(i):
(A) The qualified IDR items and services are billed by the same
provider or group of providers, the same facility, or the same provider
of air ambulance services. Items and services are billed by the same
provider or group of providers, the same facility, or the same provider
of air ambulance services if the items or services are billed with the
same National Provider Identifier or Tax Identification Number;
(B) Payment for the qualified IDR items and services is required to
be made by the same group health plan or health insurance issuer. For
group or individual health insurance coverage, this requirement is
satisfied if the same issuer is required to make payment for the
qualified IDR items and services, even if the qualified IDR items and
services relate to claims from different group health plans or
individual market policies. For self-insured group health plans, this
requirement is satisfied if the same self-insured group health plan is
required to make payment for the qualified IDR items and services,
including when the plan makes payments through a third party
administrator; the requirement is not satisfied if multiple self-
insured group health plans are required to make payments for the
qualified IDR items and services, even if those group health plans make
payments through the same third party administrator;
(C) The qualified IDR items and services meet any of the following
criteria under which multiple qualified IDR items and services relate
to the treatment of a similar condition:
(1) The qualified IDR items or services were furnished to a single
patient during a single patient encounter. For purposes of this
section, a single patient encounter is defined as a patient encounter
on one or more consecutive days during which the qualified IDR items or
services were furnished to the same patient and billed on the same
claim form; or
(2) The qualified IDR items and services were furnished to one or
more patients and were billed under the same service code or a
comparable code under a different procedural coding system, such as
Current Procedural Terminology (CPT) codes with modifiers, if
applicable, Healthcare Common Procedure Coding System (HCPCS) codes
with modifiers, if applicable, or Diagnosis-Related Group (DRG) codes
with modifiers, if applicable; or
(3) For anesthesiology, radiology, pathology, and laboratory
qualified IDR items and services, the qualified IDR items and services
were furnished to one or more patients and were billed under service
codes belonging to the same Category I CPT code range, as specified in
guidance published by the Secretary; and
(D) All the qualified IDR items and services were furnished within
the same 30-business-day period following the date on which the first
item or service included in the batched dispute was furnished, and the
qualified IDR items and services were the subjects of a 30-business-day
open negotiation period that ended within 4 business days of IDR
initiation, except as provided in paragraph (c)(5)(vii)(B) of this
section.
(ii) Treatment of bundled payment arrangements. Qualified IDR items
and services that meet the definition of a bundled payment arrangement
under Sec. 149.30 may be submitted and considered as a single payment
determination, and the certified IDR entity must make a single payment
determination for the multiple qualified IDR items and services
included in the bundled payment arrangement. Bundled payment
arrangements as defined in Sec. 149.30 and submitted under this
paragraph (c)(4)(ii) are subject to the certified IDR entity fee for
single determinations.
(5) Payment determination for a qualified IDR item or service--(i)
Submission of offers. Not later than 10 business days after the date of
final selection of the certified IDR entity as described in paragraph
(c)(1)(iv)(C) of this section (or not later than 10 business days after
the qualified IDR items and services are determined eligible as
described in paragraph (c)(2) of this section, when the Secretary
determines that any of the extenuating circumstances described in
paragraph (g)(1)(ii) of this section apply), the plan or issuer and the
provider, facility, or provider of air ambulance services:
(A) Must each submit to the certified IDR entity:
(1) An offer of an out-of-network rate expressed as both a dollar
amount and the corresponding percentage of the qualifying payment
amount represented by that dollar amount.
(2) Information requested by the certified IDR entity relating to
the offer.
(3) The following additional information, as applicable--
(i) For providers and facilities, information on the size of the
provider's practice or of the facility (if applicable). Specifically, a
group of providers must specify whether the providers' practice has
fewer than 20 employees, 20 to 50 employees, 51 to 100 employees, 101
to 500 employees, or more than 500 employees. For facilities, the
facility must specify whether the facility has 50 or fewer employees,
51 to 100 employees, 101 to 500 employees, or more than 500 employees;
[[Page 55472]]
(ii) For providers and facilities, information on the practice
specialty or type, respectively (if applicable);
(iii) For plans and issuers, information on the coverage area of
the plan or issuer, the relevant geographic region for purposes of the
qualifying payment amount, whether the coverage is fully-insured or
partially or fully self-insured (or a FEHB carrier if the item or
service relates to FEHB plans); and
(iv) The qualifying payment amount for the applicable year for the
same or similar item or service as the qualified IDR item or service.
(B) May each submit to the certified IDR entity any information
relating to the offer that was submitted by either party, except that
the information may not include information on factors described in
paragraph (c)(5)(v) of this section.
(ii) Payment determination and notification. Not later than 30
business days after the date of final selection of the certified IDR
entity as described in paragraph (c)(1)(iv)(C) of this section (or not
later than 30 business days after the qualified IDR items and services
are determined eligible as described in paragraph (c)(2) of this
section, when the Secretary determines that any of the extenuating
circumstances described in paragraph (g) of this section apply), the
certified IDR entity must:
(A) Select as the out-of-network rate for the qualified IDR item or
service one of the offers submitted under paragraph (c)(5)(i) of this
section, weighing only the considerations specified in paragraph
(c)(5)(iii) of this section (as applied to the information provided by
the parties pursuant to 29 CFR 2590.716-8(c)(5)(i). The certified IDR
entity must select the offer that the certified IDR entity determines
best represents the value of the qualified IDR item or service as the
out-of-network rate.
(1) Prevailing party. In the case of single determinations, the
party whose offer is selected by the certified IDR entity is considered
the prevailing party. In the case of batched determinations, the party
with the most determinations in its favor is considered the prevailing
party.
(2) Non-prevailing party. In the case of single determinations, the
party whose offer is not selected by the certified IDR entity is
considered the non-prevailing party. In the case of batched
determinations, the party with the fewest determinations in its favor
is considered the non-prevailing party.
(3) Parties prevailing in equal numbers of determinations. If each
party prevails in an equal number of determinations, neither party will
be considered the prevailing party or the non-prevailing party, and the
certified IDR entity fee will be split evenly between the parties.
(B) Notify the plan or issuer and the provider or facility, as
applicable, of the selection of the offer under paragraph (c)(5)(ii)(A)
of this section, and provide the written decision required under
paragraph (c)(5)(vi) of this section.
(iii) Considerations in determination. In determining which offer
to select:
(A) The certified IDR entity must consider the qualifying payment
amount(s) for the applicable year for the same or similar item or
service.
(B) The certified IDR entity must consider information submitted by
a party that relates to the following circumstances:
(1) The level of training, experience, and quality and outcomes
measurements of the provider or facility that furnished the qualified
IDR item or service (such as those endorsed by the consensus-based
entity authorized in section 1890 of the Social Security Act).
(2) The market share held by the provider or facility or that of
the plan or issuer in the geographic region in which the qualified IDR
item or service was provided.
(3) The acuity of the participant, beneficiary, or enrollee
receiving the qualified IDR item or service, or the complexity of
furnishing the qualified IDR item or service to the participant,
beneficiary, or enrollee.
(4) The teaching status, case mix, and scope of services of the
facility that furnished the qualified IDR item or service, if
applicable.
(5) Demonstration of good faith efforts (or lack thereof) made by
the provider or facility or the plan or issuer to enter into network
agreements with each other, and, if applicable, contracted rates
between the provider or facility, as applicable, and the plan or
issuer, as applicable, during the previous 4 plan years.
(C) The certified IDR entity must also consider information
provided by a party in response to a request by the certified IDR
entity under paragraph (c)(5)(i)(A)(2) of this section that relates to
the offer for the payment amount for the qualified IDR item or service
that is the subject of the payment determination and that does not
include information on factors described in paragraph (c)(5)(v) of this
section.
(D) The certified IDR entity must also consider additional
information submitted by a party that relates to the offer for the
payment amount for the qualified IDR item or service that is the
subject of the payment determination and that does not include
information on factors described in paragraph (c)(5)(v) of this
section.
(iv) [Reserved]
(v) Prohibition on consideration of certain factors. In determining
which offer to select, the certified IDR entity must not consider:
(A) Usual and customary charges (including payment or reimbursement
rates expressed as a proportion of usual and customary charges);
(B) The amount that would have been billed by the provider or
facility for the qualified IDR item or service had the provisions of
Sec. Sec. 149.410 and 149.420 (as applicable) not applied; or
(C) The payment or reimbursement rate for items and services
furnished by the provider or facility payable by a public payor,
including under the Medicare program under title XVIII of the Social
Security Act; the Medicaid program under title XIX of the Social
Security Act; the Children's Health Insurance Program under title XXI
of the Social Security Act; the TRICARE program under chapter 55 of
title 10, United States Code; chapter 17 of title 38, United States
Code; or demonstration projects under section 1115 of the Social
Security Act.
(vi) Written decision. (A) The certified IDR entity must explain
its determination in a written decision submitted to the parties and
the Secretary, in a form and manner specified by the Secretary.
(B) The certified IDR entity's written decision must include an
explanation of their determination, including what information the
certified IDR entity determined demonstrated that the offer selected as
the out-of-network rate is the offer that best represents the value of
the qualified IDR item or service, including the weight given to the
qualifying payment amount and any additional credible information under
paragraphs (c)(5)(iii)(B) through (D) of this section.
(vii) Effects of determination--(A) Binding. A determination made
by a certified IDR entity under paragraph (c)(5)(ii) of this section:
(1) Is binding upon the parties, in the absence of fraud or
evidence of intentional misrepresentation of material facts presented
to the certified IDR entity regarding the claim; and
(2) Is not subject to judicial review, except in a case described
in any of paragraphs (1) through (4) of section 10(a) of title 9,
United States Code.
(B) Suspension of certain subsequent IDR requests. In the case of a
single determination made by a certified IDR entity under paragraph
(c)(5)(ii) of this section, the party that submitted the initial
notification under paragraph (b)(2) of this section may not submit a
[[Page 55473]]
subsequent notification involving the same other party for a claim for
the same item or service that was the subject of the initial
notification during the 90-calendar-day period following the
determination. In the case of a batched determination made by a
certified IDR entity under paragraph (c)(5)(ii) of this section, the
party that submitted the initial notification under paragraph (b)(2) of
this section may not submit a subsequent notification involving the
same other party for a claim for the same items or services that were
the subject of the initial notification during the 30-business-day
period following the determination.
(C) Subsequent submission of requests permitted. In the case of a
single determination made by a certified IDR entity under paragraph
(c)(5)(ii) of this section, if the end of the open negotiation period
specified in paragraph (b)(1) of this section occurs during the 90-
calendar-day suspension period regarding claims for the same item or
service that were the subject of the single determination, either party
may initiate the Federal IDR process for those claims by submitting a
notification as specified in paragraph (b)(2) of this section during
the 30-business-day period beginning on the day after the last day of
the 90-calendar-day suspension period. In the case of a batched
determination made by a certified IDR entity under paragraph (c)(5)(ii)
of this section, if the end of the open negotiation period specified in
paragraph (b)(1) of this section is completed in the 30 business days
prior to or during the 30-business-day suspension period regarding
claims for the same items or services that were the subject of the
batched determination, either party may initiate the Federal IDR
process for those claims by submitting a notification as specified in
paragraph (b)(2) of this section during the 4-business-day period
beginning on the business day after the 30-business-day suspension
period as described in paragraph (c)(5)(vii)(B) of this section.
(viii) Recordkeeping requirements. The certified IDR entity must
maintain records of all claims and notices associated with the Federal
IDR process with respect to any determination for 6 years. The
certified IDR entity must make these records available for examination
by the plan, issuer, FEHB carrier, provider, facility, or provider of
air ambulance services, or a State or Federal oversight agency upon
request, except to the extent the disclosure would violate either State
or Federal privacy law.
(ix) Payment. If applicable, the amount of the offer selected by
the certified IDR entity (less the sum of the initial payment and any
cost sharing paid or owed by the participant or beneficiary) must be
paid directly to the provider, facility, or provider of air ambulance
services not later than 30 calendar days after the determination by the
certified IDR entity. If the offer selected by the certified IDR entity
is less than the sum of the initial payment and any cost sharing paid
by the participant or beneficiary, the provider, facility, or provider
of air ambulance services will be liable to the plan or issuer for the
difference. The provider, facility, or provider of air ambulance
services must pay the difference directly to the plan or issuer not
later than 30 calendar days after the determination by the certified
IDR entity.
Liesl I. Fowler,
Executive Secretary to the Department, Department of Health and Human
Services.
Daniel Aronowitz,
Assistant Secretary, Employee Benefits Security Administration,
Department of Labor.
Kalle L. Wardlow,
Federal Register Liaison, Publications and Regulations, Associate Chief
Counsel, (Procedure and Administration) Department of the Treasury.
In concurrence:
Kurt D. Dykstra,
General Counsel, Office of Personnel Management.
[FR Doc. 2026-17622 Filed 8-27-26; 8:45 am]
BILLING CODE 6325-63-P; 4831-GV-P; 4510-29-P; 4169-69-P
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