Arbiters to expand surprise billing dispute resolution reviews, CMS says

By Maya Goldman / April 14, 2022

Surprise billing dispute arbiters will need to consider information in addition to median contracted rates for billed items or services, the Centers for Medicare and Medicaid Services said in revised guidance.

Providers and health insurers can submit the following types of information to influence arbiters' decisions on qualifying payment amounts:

• Training, experience and quality level of providers or facilities;

• Regional market share of providers or facilities

• The acuity of the patients who received the services;

• Teaching status, case mix and scope of services of the facilities

• Efforts—or lack thereof—to enter into network agreements or contracted rates from the previous four years, if applicable.

The CMS guidance, dated Tuesday, also says arbiters are not responsible for deciding whether median contracted rates are correct. If an arbiter questions a rate's accuracy, the federal government should be consulted, the guidance says.

CMS still has not opened the portal providers will use to file dispute resolution claims, even though the surprise billing rule has been in effect since Jan. 1. The agency previously said the utility would open the week of April 11, which ends Friday.

The updated guidance comes in response to a federal judge vacating part of the dispute resolution process laid out in the interim final rule implementing the surprise billing ban. That regulation required independent dispute arbiters to begin with the assumption that the median contracted rate is the appropriate out-of-network amount to pay the items or services in question.

The Texas Medical Association initiated the lawsuit, arguing that process would lead to lower payments and favors insurers by placing undue weight on median contracted rates. The plaintiffs argued the surprise billing ban statute says arbiters "shall consider" both median contracted rates and additional categories of information.

The federal government has until April 25 to appeal the decision. Similar lawsuits are in progress in other courts, which may come to different conclusions.

Disputes for air ambulance bills should still be resolved based on median contracted rates, and arbiters must consider other information submitted by providers or insurers when it clearly demonstrates contract rates are materially different from the appropriate out-of-network rates. A separate lawsuit filed by the Association of Air Medical Services also claims the arbitration process gives insurers the upper hand. The case is still in progress.