CMS revises surprise-billing arbitration process

Arbiters will need to consider more than insurer's median in-network rates for billed items when deciding surprise-billing disputes, CMS said in updated guidance this week.

CMS said in addition to the median in-network rate, providers can submit other items for the arbiter to consider:

  • The level of training, experience, and quality and outcomes measurements of providers or facilities
  • The regional market share held by the provider or facility
  • The acuity of the patient, member or enrollee receiving the service or the complexity of the service
  • The teaching status, case mix and scope of services the facility or provider offers
  • Demonstration of good faith efforts, or lack of efforts, to enter into network contact agreements with one another

The guidance, dated April 12, also clarifies that arbiters are not responsible for deciding if median in-network rates are accurate.

The updated guidance comes after a federal judge ruled Feb. 23 that the independent dispute resolution process implemented by HHS violated the Administrative Procedure Act. The Texas Medical Association sued the Biden administration in October 2021 over the surprise-billing resolution process, claiming it did not meet Congress' vision for the bill. 

Providers took issue with a portion of the process outlined in the initial surprise-billing rule that assumes the qualifying payment amount, the median in-network rate set by health insurers, is the appropriate out-of-network rate. 

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