Dive Brief:
- Insurers and employers are asking the Trump administration to stop recertifying No Surprises Act arbiters until the law’s controversial dispute resolution process is reformed.
- The Coalition Against Surprise Medical Billing, a payer advocacy group, and the ERISA Industry Committee, which represents large employers, sent letters to top administration officials last week asking them to pause recertifications until they implement more rigorous standards for independent dispute resolution entities — third-party organizations responsible for mediating billing disagreements under the NSA.
- IDREs have contributed to “structural failures” in the arbitration process, which has generated billions of dollars in wasteful costs, the CASMB argued in its letter sent Oct. 22. The groups also want the CMS to allow more time for the public to comment on IDRE applicants.
Dive Insight:
The NSA was passed in 2020 to protect patients from unexpected out-of-network medical bills. But the law’s arbitration process, in which designated mediators resolve payment disputes between insurers and providers, has raised disputes of its own.
Insurers and providers have particularly been at loggerheads over independent dispute resolution, with each side arguing that it unfairly advantages the other. But federal data suggests providers are reaping outsized awards from IDR. Doctors and medical groups have filed significantly more disputes than regulators expected — more than 2.5 million disputes have been initiated from January through September of this year alone — and win about 80% of cases.
That volume, along with sky-high awards, has riled up policymakers concerned that IDR is driving up healthcare costs. The process spurred more than $22 billion in excess spending during its first four years, according to Georgetown University researchers.
According to the CASMB, which represents employer groups, unions and insurers, IDREs are a central driver of the broader dysfunction in the federal IDR system. That stance is supported by some research showing that IDREs routinely favor providers, and appear to be financially motivated to do so: Arbiters are paid by dispute, and receive no reimbursement if a dispute is deemed ineligible.
As a result, they’re incentivized to find disputes eligible, and rule in favor of providers so they keep filing them.
The CASMB’s letter takes issue with what it says is an inadequate process of recertifying IDREs without making them demonstrate that they are treating cases fairly. Currently the process “appears to treat recertification as an attestation-based renewal, with no mechanism to address structural conflicts arising from an entity’s ownership, corporate relationships, or commercial client base,” the letter states.
The CMS posts a list each week of entities seeking certification or recertification. Stakeholders have five days to lodge their opposition after a group’s application gets preliminary approval from the CMS. Currently, three entities are up for recertification.
But the CMS’ own data show that some applicants’ dispute outcomes differ greatly from others, even when deciding comparable disputes, the CASMB said, raising questions about the rigor of the recertification process.
“It is in the best interests of all parties for the Departments to disclose why the existing available evidence does not disqualify the applicants,” the coalition stated. “Without this transparency and demonstration of the rigor of the process, the recertification review will continue to fall short of statutory and regulatory requirements and IDREs’ appropriateness will be called into question.”
The CASMB argues that the five-day window should increase to at least 30 days, so stakeholders can provide feedback on whether the entity should be recertified. Entities applying for recertification should also be subject to closer scrutiny, according to the letter.
To support its claim, the CASMB highlighted findings about recent entities seeking recertification. For example, Maximus Federal Services, a recent applicant, took the provider’s side in 93.7% of contested determinations in which the provider was asking for at least 10 times the rate for a comparable in-network service, according to the coalition.
The letter from the ERISA Industry Committee, or ERIC, made similar complaints. Both groups argued for increased transparency in the IDRE recertification process.
“Transparency must extend beyond final outcomes to include access to payer and provider submissions and the rationale underlying each determination,” ERIC wrote. “Without this, neither regulators nor stakeholders can assess whether the law is being applied consistently or as Congress intended.”
