Before an out-of-network payment dispute can go to federal independent dispute resolution (IDR), the provider and the plan must first try to settle it directly. That step is open negotiation. It’s mandatory, it runs on a fixed clock, and it’s where many disputes are won or lost.
When open negotiation applies
Open negotiation applies to items and services covered by the No Surprises Act’s out-of-network payment rules:
- emergency services from an out-of-network provider or facility,
- non-emergency services from an out-of-network provider at an in-network facility (unless the patient validly waived protections through notice and consent), and
- air ambulance services from an out-of-network provider.
If a state’s own surprise-billing law governs the claim instead, the state process applies and federal open negotiation doesn’t. See Federal vs. state IDR.
The deadline to start
You have 30 business days from the date you receive the plan’s initial payment or notice of denial to send an open negotiation notice. Business days exclude weekends and federal holidays.
Miss this window and the claim can’t proceed to federal IDR. The remittance date is the most important date in your workflow.
What the notice must include
Use the standard Open Negotiation Notice published by the Departments. It identifies:
- the item or service, the date it was furnished, and the service code,
- the claim number and the patient’s plan,
- the initial payment amount (or that the claim was denied),
- your offer: the out-of-network rate you’re proposing, and
- contact information for the person handling the negotiation.
Send it in a way you can prove, and keep a copy together with the proof of delivery. If the dispute goes to IDR, you may need to show when negotiation began.
The 30-business-day negotiation period
The negotiation period runs 30 business days from the date the notice is sent. During that time:
- Either party can settle. An agreed amount becomes the out-of-network rate for that claim.
- The plan may respond with a counteroffer, or not at all. Silence doesn’t extend the clock.
- The clock doesn’t pause. If there’s no agreement when the period ends, the 4-business-day window to initiate federal IDR opens immediately.
Using the period well
Open negotiation is more than a formality before arbitration. Handled well, it settles claims faster and at lower cost than IDR.
- Lead with a supportable number. An offer you can defend with documentation reads differently from an opening bid, both to the payer now and to an arbitrator later.
- Assemble the IDR record now. The factors an IDR entity may weigh include your training and experience, patient acuity, case complexity, and the history of network negotiations with this payer. Gather that information during negotiation, not in the 10 days after an entity is selected.
- Check the QPA disclosure. The plan’s initial payment should state the qualifying payment amount. If it’s missing or looks wrong, ask for it in writing.
- Diary the end date the day you send the notice. Then diary the IDR initiation deadline 4 business days after that.
- Screen for eligibility early. If a claim belongs in a state process, is a Medicare claim, or had valid patient consent, it’s better to know before spending effort on it. Our pre-filing checklist covers the common failure points.
If negotiation fails
If no agreement is reached, either party may initiate federal IDR within 4 business days after the period ends. From there the process moves to IDR entity selection, offers and a binding determination. The federal IDR timeline covers each step.
This guide is general information, not legal advice. Confirm current requirements at cms.gov/nosurprises.