CMS Says Surprise Billing Arbitration Can Resume For Some Disputes — Others Remain On Pause

Dive Brief:

  • Arbiters can resume resolving payment disputes between providers and payers involving cases in which care was delivered prior to Oct. 25, the CMS said Friday.
  • However, the arbitration process to is still on hold for disputes regarding services delivered on or after that date, following a federal judge’s decision earlier this month.
  • The CMS is continuing to work on new guidance in light of the February decision that ruled against the government’s implementation of the surprise billing ban and threw a wrench in the third-party process to resolve payment disputes.

Dive Insight:

The federal government’s ban on surprise bills took effect at the start of 2022 in effort to protect patients from being stuck with hefty medical bills when providers and payers fail to agree to pricing terms.

To remove patients from being stuck in the middle, the law set up a process for how providers and payers can resolve pricing disputes. Unable to come to pricing terms, payers and providers both submit one offer to a third party, known as an arbiter, who is then supposed to select one offer.

But how the federal government chose to implement that process has generated numerous lawsuits, especially from providers who allege that it unfairly benefits insurers.

The Texas Medical Association has filed suit multiple times over the implementation of the No Surprises Act. A federal judge in Texas has sided with TMA twice in separate lawsuits brought by the medical association.

The central issue in both cases is how much arbiters should rely on a metric known as the qualified payment amount, or the median in-network rate, when resolving pricing disputes.

The judge first sided with the TMA last February and said it was unlawful for the government to instruct arbiters to start with the “presumption” that the qualifying payment amount, or QPA, is the correct payment amount.

As a result of the ruling, regulators went back and nixed the “presumption” language from the final instruction to arbiters.

It still wasn’t enough, as Judge Jeremy Kernodle said in his latest ruling that regulators, “have not relinquished their goal of privileging the QPA, tilting arbitrations in favor of insurers, and thereby lowering payments to providers.”

The latest ruling has disrupted the arbitration process as regulators head back to the drawing board to come into compliance with Kernodle’s most recent opinion.

Meanwhile, the federal government said it has been inundated with requests from providers seeking to enter arbitration since it opened the arbitration portal.


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