For healthcare providers, winning an Independent Dispute Resolution (IDR) proceeding under the No Surprises Act (NSA) has oftenfelt like winning a lawsuit, only to see the judgment go unpaid. The IDR process was designed to resolve payment disputesbetween providers and insurers efficiently and without court involvement.
But in practice, the IDR process has been plagued with problems, including millions of disputes, inadequate communicationbetween parties, confusing eligibility rules, and insurers who felt little urgency to pay awards.
New final rules issued
by theDepartments of Health and Human Services, Labor, and Treasury (the Departments), and the Office of Personnel Management lastmonth (the May 2026 Final Rules) represent the most significant operational overhaul of the IDR process since the NSA tookeffect.
But because they’re focused on the mechanics of the IDR process, they don’t address the NSA’s most glaring weakness: its lack ofa private right of action for providers to enforce awards against insurers.
A Primer on the No Surprises Act and the IDR Process
Congress passed the NSA as part of the Consolidated Appropriations Act of 2021. Its purpose was to protect patients from unexpected medical bills, particularly when they had little or no control over whether their provider was in-network. The statute prohibits balance billing in emergency situations and for certain non-emergency services at in-network facilities.
The NSA also shifts the burden of resolving billing disputes between providers and insurers away from patients. To resolve thosedisputes, the NSA established the IDR process. When an insurer makes a payment that a provider contests, the parties must first
engage in a 30-business-day open negotiation period. If that fails, either side can request IDR. A government-certified neutral partyreviews the dispute, each side submits a proposed payment amount, and the neutral issues a binding determination. The insurer isrequired to pay within 30 days of that determination.
The process was designed to produce finality without court involvement, but the statute did not create a private right of action for providers to seek judicial enforcement of IDR awards. Courts have been split on whether providers have any judicial path to enforce an unpaid award. The Fifth Circuit and several judges in the District of New Jersey have held that the NSA creates no private right of action to enforce IDR awards and that those awards cannot be enforced under the Federal Arbitration Act. However, judges in the Districts of Connecticut and Maryland have endorsed judicial enforcement of IDR determinations. The result is a developing split, with no uniform mechanism for a prevailing provider to compel payment. Unsurprisingly, a December 2023 U.S. Government Accountability Office report
found that insurers “have regularly failed to pay determination awards upon losing an IDRprocess dispute within the 30 days required under the [NSA],” and that at least one provider had over $5 million in outstanding IDRpayments that were not paid during the statutory period for payments.
The sheer volume of IDR disputes has compounded the enforcement problem. As noted in the May 2026 Final Rules, the federalgovernment estimated roughly 22,000 disputes per year when the IDR portal launched in April 2022. Providers submitted 489,000disputes in the first year alone. By Jan. 31, 2026, that total had exceeded 5.1 million. The IDR process was never built for that scale,and has struggled to keep up with the number of disputes filed since its inception.
What the May 2026 Final Rules Change About the IDR Process
The May 2026 Final Rules are about 600 pages long and take effect 60 days after publication in the Federal Register. The rulestarget six common operational issues within the IDR process.
Standardized Codes to Improve Pre-Dispute Communication
One of the most common complaints from providers about the IDR process has been that insurers’ payment notices fail to includethe information needed to decide whether to contest a payment or initiate IDR. Under the May 2026 Final Rules, insurers must usestandardized claim adjustment reason codes (CARCs) and remittance advice remark codes (RARCs) in electronic payment noticeswhen paying out-of-network providers. These codes must clearly indicate whether a claim is subject to the NSA’s surprise billingprotections and the federal IDR process.
These are one piece of a broader disclosure obligation. The May 2026 Final Rules also require insurers to furnish additionalinformation with their initial payment or denial communications—including qualifying payment amount (QPA) disclosures—so thatproviders can assess earlier in the process not only whether a claim falls under the NSA and the IDR process, but also whether astate surprise-billing law or all-payer model agreement governs instead.
Revised Open Negotiation Requirements
The May 2026 Final Rules formalize the open negotiation process to create a documented record and reduce the number ofineligible disputes that reach IDR. Parties must now submit open negotiation notices and responses through the federal IDR portal;the 30-business-day negotiation period officially starts on the date of that submission. A responding party must provide a formalresponse by the 15th business day. The intent is to make clear exactly when open negotiation occurred, when it ended, andwhether both parties engaged meaningfully before a dispute was filed.
Additionally, insurers cannot force providers to route open negotiation notices through proprietary payer portals; the federal IDRportal is the designated channel, removing a recurring source of friction for providers. Also, the 15th-business-day responsedeadline does not compress the timeline—if a responding party misses it, the dispute does not advance early, and the full 30-business-day open negotiation period must still elapse before either side may initiate IDR.
New Batching Rules
To date, providers or insurers often submit large batches of claims that do not meet existing requirements, which has become amajor source of ineligible disputes that clog the IDR system. The May 2026 Final Rules clarify and narrow when multiple claimscan be submitted as a single batched dispute. Batching is now permitted in three circumstances: claims for services to a singlepatient on the same or consecutive service dates billed on one claim form; claims billed under the same service code across one
or more patients; and claims from certain specialty fields (anesthesiology, radiology, pathology, and laboratory services) under thesame Category I CPT code section. Additionally, a single batched dispute may not include more than 50 line items.
The new batching rules also shorten the 30-business-day cooling-off period for batched disputes, signal that the ability to repair animproperly batched dispute after filing will eventually be curtailed (making it vital for providers to batch claims correctly at theoutset), and define “bundled payment arrangements,” making clear that a bundled dispute is a distinct concept from a batcheddispute—a distinction providers and their counsel should not conflate when structuring submissions.
Faster Eligibility Determinations
Certified IDR entities are organizations approved by the Departments to resolve payment disputes in the IDR process. The May2026 Final Rules require these organizations to determine whether a dispute is eligible for the IDR process within five business days of their selection. Parties pursuing IDR then have five business days to respond to requests for additional information. If a party fails to respond, the presiding certified IDR entity can either proceed without that information or close the dispute. This timeline addresses a recognized bottleneck: eligibility review had become one of the primary causes of delay in the IDR process, in part because certified IDR entities were often waiting for information that parties were slow to provide.
The Departments had considered moving eligibility review in-house, but ultimately declined to do so. Certified IDR entities remainthe primary decision-makers on eligibility; the rules layer deadlines and an additional information process onto that structureinstead of replacing it. Providers can expect insurers to keep raising eligibility objections and should be prepared to respondquickly when an IDR entity requests more information.
Lower Administrative Fees
The May 2026 Final Rules reduce the IDR administrative fee to $15 per party per dispute, down from $115 per party, effective five business days after publication in the Federal Register. This is a substantial reduction from prior fee levels, which had climbed as high as $350 per party before a federal court vacated them. The lower fee is intended to ensure that providers with smaller-dollar claims are not priced out of the IDR process.
The lower fee, however, cuts both ways. Making IDR economical for claims that were previously not worth pursuing may increasefiling volume and swell the backlog of disputes that the May 2026 Final Rules aim to relieve.
A New IDR Registry and the IDR Gateway
Insurers subject to the IDR process will now be required, under the May 2026 Final Rules, to register with the government andobtain an IDR registration number. The IDR Registry is designed to solve a problem that has frustrated providers for years:identifying the right payer and finding the correct contact information, particularly when multiple group health plans share thesame plan sponsor name.
The registry is part of a broader IDR Gateway, a centralized platform for starting, tracking, and managing disputes that thegovernment plans to roll out in phases in 2026. The registry provisions will become applicable 90 business days after thegovernment announces that the registry functionality is available.
How the May 2026 Final Rules Will Impact Providers Pursuing IDR
The May 2026 Final Rules do not address the NSA’s lack of a private right of action for providers to enforce their IDR wins, but theywill affect providers in several ways.
First, standardized communication requirements will create a clearer paper trail. For providers litigating NSA payment disputes, thenew CARC and RARC requirements mean that more disputes will have documented pre-IDR communication records. When aprovider challenges an insurer’s failure to pay, the record of what the insurer communicated and when will be clearer. That mattersboth for IDR proceedings themselves and for any parallel legal strategies providers and their counsel pursue.
Second, the batching changes will affect how providers structure their disputes. Providers and their counsel need to review theircurrent dispute-filing practices against the new batching rules before they take effect. Improperly batched disputes are a leadingcause of ineligibility findings, resulting in wasted time and money. Getting this right at the beginning of the process is far lesscostly than having disputes rejected after filing.
Third, the lower administrative fee reduces a barrier that had been discouraging smaller providers from using the IDR process.Medical practices with lower-dollar out-of-network claims often found that the cost of IDR did not justify the potential recovery. At$15 per party per dispute, the calculus changes. Attorneys who represent smaller practices should revisit whether IDR is now aviable strategy for claims that were previously not worth the effort.
Fourth, the IDR Gateway, designed to be a centralized platform with built-in claim tracking and, eventually, in-portal negotiationtools, could meaningfully change how disputes are managed at scale. Providers forced to submit high volumes of NSA claims—and the attorneys they’ve engaged to assist them with that process—should monitor implementation closely and determine how tointegrate the Gateway into their dispute management processes.
A Small Step in the Right Direction, With at Least One Big Step Left to Go
The IDR process was designed to be a practical, efficient alternative to litigation. After about half a decade, the federal government,through its promulgation of the May 2026 Final Rules, is acknowledging that the IDR process has not yet achieved that promise.
However, no matter how much smoother the mechanics of the IDR process become under these rules or future ones, untilCongress amends the NSA to include a private right of action for providers to enforce IDR awards against insurers, it will neverbecome a true alternative to litigation, nor will it be a reliable process for making providers whole.
Adam Kotlar
is a founding partner at Kotlar Cohen. He is certified by the Supreme Court of New Jersey as a Civil Trial Attorney andas a Workers’ Compensation Attorney.
Justin Cohen
is also a founding partner at Kotlar Cohen. He is certified by the SupremeCourt of New Jersey as a Workers’ Compensation Attorney. Both co-chair the firm’s No Surprises Act legal practice, representingphysicians and medical groups in the statute’s Independent Dispute Resolution process. They can be reached at
and
, respectively.
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