Detailed answers to the most common questions from physicians, surgeons, and practice administrators navigating the NY IDR and federal No Surprises Act processes.
New York enacted the nation's first surprise billing law in 2015 under Financial Services Law Article 6. The federal No Surprises Act (NSA) took effect January 1, 2022 under 42 U.S.C. § 300gg-111. The two frameworks operate in parallel.
The most critical difference is the filing window: NY state IDR allows providers to file a dispute within 3 years of the original payment. The federal NSA requires filing within 4 business days after the 30-day open negotiation period closes. NY also uses the FAIR Health 80th percentile UCR as a key factor, while federal IDR uses the QPA (a 2019 median in-network rate) as its starting benchmark.
NY state IDR applies to fully insured health plans regulated by DFS. Federal IDR applies to self-funded ERISA plans and plans issued outside New York. Where both apply, the law providing more protection governs.
Authority: NY Financial Services Law Article 6 (§§ 600-616); Insurance Law § 3241; 23 NYCRR 400; 42 U.S.C. §§ 300gg-111 et seq.
Under Financial Services Law § 603(h), a surprise bill is a bill for health care services received by an insured from a non-participating provider where: (1) a participating provider was unavailable; (2) a non-participating provider rendered services without the patient's knowledge; or (3) unforeseen medical circumstances arose at the time services were rendered. It also includes referrals from participating physicians to non-participating providers without the patient's explicit written consent acknowledging the referral may result in costs not covered by the health plan.
Certain services are automatically protected regardless of consent — including emergency medicine, anesthesiology, pathology, radiology, laboratory, neonatology, assistant surgery, hospitalist, and intensivist services provided at in-network facilities. Patients cannot waive protection for these ancillary services.
Authority: Financial Services Law § 603(h); 45 C.F.R. § 149.420(b)(1)
New York IDR applies to fully insured health plans regulated by the NY Department of Financial Services — including most individual, small group, and large group plans sold in New York through insurers licensed in the state (Insurance Law Articles 32, 43; Public Health Law Article 44).
Plans NOT covered by NY state IDR include: Medicare, Medicare Supplement, Medicare Advantage, Medicaid fee-for-service, managed long-term care, fixed indemnity plans, plans issued outside New York, self-funded ERISA plans (covered by federal NSA instead), workers' compensation, and no-fault/PIP (separate arbitration forums apply to those).
Authority: DFS OON Law Guidance, "IDR Process Applicability" section; 23 NYCRR 400
No. Anesthesiologists are defined as ancillary providers under both NY law and the federal NSA. Under 45 C.F.R. § 149.420(b)(1), ancillary services (including emergency medicine, anesthesiology, pathology, radiology, neonatology, assistant surgeons, hospitalists, and intensivists) are entirely excluded from the consent/waiver mechanism. No written consent or waiver form can authorize you to balance bill the patient for these services when provided at an in-network facility.
Your only path to fair reimbursement above the insurer's initial QPA payment is through IDR arbitration — which is why pursuing these claims through the IDR process is so important, and why the 85% provider win rate is particularly significant for ancillary providers.
Authority: 45 C.F.R. § 149.420(b)(1); Financial Services Law § 603(h)(1) (NY ancillary services)
Baseball-style arbitration means the arbitrator must choose one of the two final offers — the provider's or the insurer's — without modification. There is no splitting the difference, no compromise figure. This creates strong strategic incentives for both parties: an unreasonably high provider offer loses to the insurer's offer; an unreasonably low insurer offer loses to the provider's offer. The arbitrator picks the one that is most supported by the evidence.
This is why offer calibration is critical. Providers who anchor their offer to FAIR Health 80th percentile UCR (NY) or to prior contracted rates (federal), with a comprehensive credible information package, present themselves as the "reasonable" party. Insurers who offer only the QPA increasingly lose — providers win 85% of federal IDR cases, with median awards of 4× the QPA as of 2024 data.
Under Financial Services Law § 604 and 23 NYCRR 400.7-400.8, NY IDR entities must consider all relevant factors submitted by the parties. No single factor is determinative. The statute specifically identifies: the 80th percentile of UCR as calculated by FAIR Health; the median rate paid by the health plan to similarly qualified participating providers for the same/similar services in the same region; the provider's training, experience, and specialty; patient acuity and case complexity; geographic region; circumstances of the case; and any additional information submitted by either party.
The arbitrator cannot consider: Medicare/Medicaid rates, workers' comp or no-fault fee schedules, or billed charges as a standalone benchmark. The patient's cost-sharing cannot increase based on the IDR determination.
Authority: Financial Services Law § 604; 23 NYCRR 400.7; 23 NYCRR 400.8; DFS FAQ Q-8, Q-9
After a dispute is submitted to the DFS portal, the IDRE is assigned and both parties receive a deadline to submit their final offers and supporting documentation. The IDRE then issues a determination. In practice, from submission to determination typically takes 60–120 days, though case volume at the DFS portal can affect timelines.
The federal IDR process has statutory timelines: 30 business days for open negotiation + 4 days to file + 10 days to submit offers + 30 days for determination. In practice, federal IDR timelines have frequently exceeded statutory deadlines due to the high volume of disputes filed (nearly 1.2 million in the first half of 2025 alone).
FAIR Health is a not-for-profit organization that maintains the largest database of privately billed medical claims in the United States. New York DFS has approved FAIR Health as the source for UCR data in OON reimbursement calculations under NY Insurance Law and Public Health Law.
Under Financial Services Law § 604, NY IDR arbitrators must consider the 80th percentile of UCR as calculated by FAIR Health. This means charges that are higher than what 80% of providers charge for the same service in the same geographic area. This benchmark is typically 2–4× higher than the QPA used in federal IDR, making NY state IDR significantly more favorable to providers for fully insured NY plans.
We use FAIR Health data to anchor our clients' IDR offers in every submission. FAIR Health data is available by CPT code and 3-digit ZIP code — we pull the precise benchmark for your service and location.
Authority: Financial Services Law § 604; NY Insurance Law §§ 3217-a(a)(19)-(20); DFS OON Law Guidance — UCR section
Yes, for federal IDR disputes. Claims involving the same payer and the same or similar service can be batched into a single IDR dispute, with one administrative fee covering the entire batch. This dramatically reduces per-claim cost and makes it economically viable to pursue large volumes of smaller underpaid claims.
For NY state IDR, we group related claims strategically to minimize filing costs and maximize efficiency. Our approach for high-volume practices (ASCs, anesthesia groups, radiology groups) includes a systematic audit to identify all batchable claims against each payer before filing.
Possibly not — if they involve fully insured NY health plans. New York state IDR allows providers to file disputes within 3 years of the date the health plan made the original payment. Claims paid as far back as mid-2022 (for disputes filed in mid-2025, for example) may still be within the window.
The key variables are: (1) whether the claim involves a fully insured NY plan (not a self-funded ERISA plan, which uses the federal NSA framework); and (2) when the health plan made the original payment — the practical DFS IDR filing window begins from that date, and any parallel CPLR § 213(2) breach-of-contract limitations period also runs from that date.
This is why we always recommend a claim audit as the first step. Many practices are sitting on significant recoverable revenue in aged claims they wrote off because they weren't aware of the NY lookback window.
Authority: 23 NYCRR 400 / Financial Services Law § 605; DFS FAQ Q-2 (time limits)
Yes, provided the procedure was medically necessary (not cosmetic-only) and the patient's plan includes out-of-network benefits. Medically necessary breast reduction (CPT 19318) is covered by most commercial PPO plans when properly documented with chronic symptoms (back/neck/shoulder pain, skin rashes, failed conservative treatment) and Schnur Scale tissue removal criteria.
NY DFS specifically uses breast reconstruction (CPT 19357) as one of its three required OON Reimbursement Examples that health plans must disclose — indicating this is a frequently disputed service category. For breast reduction cases, the arbitration submission must include: pre-authorization approval letter, operative report showing actual tissue removed in grams, PCP and specialist documentation, Schnur Scale calculation, and FAIR Health 80th percentile for CPT 19318 in your ZIP code.
This is one of the highest-value OON dispute categories for plastic surgeons in New York. We have significant experience building credible information packages for these claims.
Authority: DFS OON Reimbursement Examples (CPT 19357 required disclosure); NY Insurance Law § 3217-a(a)(19)(C)
For self-funded ERISA plans issued or renewed on or after January 1, 2022, the federal No Surprises Act applies — not NY state IDR. Self-funded plans are regulated by ERISA (federal law) and are generally exempt from state insurance regulation, including NY Financial Services Law Article 6 and Insurance Law § 3241.
The federal NSA process applies to these claims, which means the 4-business-day filing window after the 30-day negotiation period is critical. If you've missed those deadlines on self-funded plan claims, we can assess whether any alternative legal theories (ERISA claims, plan document violations) are available.
For older self-funded plan claims (pre-January 1, 2022), there are limited avenues for dispute under ERISA benefits law — we evaluate these on a case-by-case basis.
The Qualifying Payment Amount (QPA) is the federal NSA's baseline benchmark — defined as the insurer's median contracted rate for a given service in a given market as of January 31, 2019, indexed forward by CPI. It is calculated unilaterally by the insurer.
Providers and courts have identified several methodological problems with QPA calculations: inclusion of "ghost rates" (rates for services never actually furnished in the market), exclusion of incentive and bonus payments from in-network rate calculations, and use of non-comparable specialties in the median calculation. These issues have been the subject of extensive litigation (Texas Medical Association I-IV, currently before the 5th Circuit en banc on the ghost rates issue as of April 2026).
The practical effect is that QPA calculations are systematically lower than actual in-network market rates — which is why median federal IDR awards have reached 4× the QPA, and why arbitrators select the provider's offer 85% of the time when providers submit comprehensive credible information packages.
We represent OON providers on a contingency basis. There is no upfront cost, no retainer, and no hourly billing. We earn a percentage of the amount we recover for your practice. If we don't recover, we don't get paid.
The specific contingency percentage is discussed during the free case evaluation and depends on the volume and complexity of claims, the forums involved, and the anticipated recovery. In most cases, the contingency structure means there is no financial risk to your practice in pursuing these disputes.
For IDR disputes where the losing party pays the arbitration entity's fee, providers who win recover this cost through the award. We discuss this allocation during the evaluation process.
Timeline varies significantly based on the forum and case complexity. From initial evaluation to first recovery, most practices see results within 3–9 months. NY state IDR typically resolves in 60–120 days from filing. Federal IDR has statutory timelines of approximately 90 days from filing to determination, though backlogs have caused delays in practice.
For high-volume practices with ongoing OON billing, we establish systems for continuous claim tracking and rolling IDR filings — meaning the practice receives periodic recoveries on an ongoing basis rather than a single lump-sum result.
The free evaluation includes: (1) a review of the practice's payer mix to identify which plans are fully insured NY plans vs. self-funded ERISA plans; (2) a review of claim history to identify underpaid claims and their estimated recovery value; (3) analysis of which claims fall within NY IDR's practical claim recovery window (including any CPLR § 213(2) reach) and which require federal NSA filing; (4) an assessment of the strength of the credible information available; and (5) a clear recommendation on whether to proceed and what the projected recovery looks like.
The evaluation is conducted by Sherwin Kamkar, the firm's attorney, or under his direct supervision. You will speak with a lawyer who knows this area of law, not a paralegal running a checklist.