Interim Final Rule with comment (IFR) to Surprise Billing; Part II - McDermott+Consulting

Interim Final Rule with comment (IFR) to Surprise Billing; Part II

On September 30, 2021, the US Office of Personnel Management and the US Departments of Health and Human Services (HHS), Treasury and Labor issued an Interim Final Rule with comment (IFR), entitled Requirements Related to Surprise Billing; Part II, implementing additional portions of the No Surprises Act (NSA), which prohibits balance billing in certain situations effective January 1, 2022.

The IFR focuses on the independent dispute resolution (IDR) process, good faith estimates for uninsured (or self-pay) individuals, the patient-provider dispute resolution process and expanded rights to external review. Of note, this IFR does not address the audit process for plans, which was supposed be outlined through regulation by October 1, 2021, and therefore will need to be addressed in future guidance or rulemaking.

Stakeholders will have 60 days to comment on this rule once it is published in the Federal Register.

Key Takeaways

  • The departments establish a process for initiating IDR, including the template forms, the criteria for becoming a certified IDR entity, and the mandatory ranges for IDR fees.
  • The IDR entity must begin with the presumption that the Qualifying Payment Amount (QPA), based on the median contract prices in the area for the same medical service, is the appropriate out-of-network amount.
  • The application process to become an IDR entity is now open and the departments will accept applications on a rolling basis. Organizations must submit the application and all documentation no later than November 1, 2021, to be certified by January 1, 2022.
  • The departments establish a patient-provider select dispute resolution process for uninsured and self-pay individuals.

Key Resources



For more information, contact Kristen O’Brien, Katie Waldo, Eric Zimmerman, Aaron Badida, Mary Beth Bresch White, Lauren Knizner, and Emily Curran (McDermott Will & Emery, Associate).