Sec. 7. Determination through open negotiation and mediation of out-of-network rates to be paid by health plans
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/bill/116/hr/5826/ih/section-7·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 2719A of the Public Health Service Act ( 42 U.S.C. 300gg–19a ), as amended by sections 2(a), 3(a), 5(a), and 6(a), is further amended by inserting before subsection
(k)the following new subsection: With respect to an item or service furnished in a year by a nonparticipating provider or a nonparticipating facility, with respect to a health plan, in a State described in subparagraph
(B)of subsection (k)(11) with respect to such plan and provider or facility, and for which a payment is required to be made by the health plan pursuant to subsection (b)(1), (e)(1), or (i)(1), the provider or facility (as applicable) or plan may, during the 30-day period beginning on the day the provider or facility receives a response from the plan regarding a claim for payment for such item or service, initiate open negotiations under this paragraph between such provider or facility and plan for purposes of determining, during the open negotiation period, an amount agreed on by such provider or facility, respectively, and such plan for payment (including any cost-sharing) for such item or service. For purposes of this subsection, the open negotiation period, with respect to an item or service, is the 30-day period beginning on the date of initiation of the negotiations with respect to such item or service. In carrying out negotiations initiated under subparagraph (A), with respect to an item or service described in such subparagraph furnished in a year, not later than the fifth business day of the open negotiation period described in such subparagraph with respect to such item or service— the health plan that is party to such negotiations shall notify the provider or facility that is party to such negotiations of the median contracted rate for such item or service and year; and such provider or facility shall notify such health plan of— the median of the total amount of reimbursement (including any cost-sharing) paid, for the most recent year for which information is available, to such provider or facility for furnishing such item or service to a participant, beneficiary, or enrollee of a health plan that, at the time such item or service was furnished, had a contract in effect with such provider or facility with respect to the furnishing of such item or service; in the case that information described in subclause
(I)is not available, such information as specified by the Secretary; and any additional information specified by the Secretary. In the case of open negotiations pursuant to subparagraph (A), with respect to an item or service, that do not result in a determination of an amount of payment for such item or service by the last day of the open negotiation period described in such subparagraph with respect to such item or service, the provider or facility (as applicable) or health plan that was party to such negotiations may, during the 2-day period beginning on the day after such open negotiation period, initiate the mediated dispute process under paragraph
(2)with respect to such item or service. The mediated dispute process shall be initiated by a party pursuant to the previous sentence by submission to the other party and to the Secretary of a notification (containing such information as specified by the Secretary) and for purposes of this subsection, the date of initiation of such process shall be the date of such submission or such other date specified by the Secretary pursuant to regulations that is not later than the date of receipt of such notification by both the other party and the Secretary. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of the Treasury and the Secretary of Labor, shall establish a process (in this subsection referred to as the mediated dispute process ) under which, in the case of an item or service with respect to which a provider or facility (as applicable) or health plan submits a notification under paragraph (1)(C) (in this subsection referred to as a qualified mediated dispute item or service ), an entity selected under paragraph
(3)determines, subject to subparagraph
(B)and in accordance with the succeeding provisions of this subsection, the amount of payment under the health plan for such item or service furnished by such provider or facility. Under the mediated dispute process, in the case that the parties to a determination for a qualified mediated dispute item or service agree on a payment amount for such item or service during such process but before the date on which the entity selected with respect to such determination under paragraph
(3)makes such determination, such amount shall be treated for purposes of subsection (k)(11)(B) as the amount agreed to by such parties for such item or service. In the case of an agreement described in the previous sentence, the mediated dispute process shall provide for a method to determine how to allocate between the parties to such determination the payment of the compensation of the entity selected with respect to such determination. Under the mediated dispute process, the Secretary shall, with respect to the determination of the amount of payment under this subsection of a qualified mediated dispute item or service, provide for a method— that allows the parties to such determination to jointly select, not later than the last day of the 3-day period following the date of the initiation of the process with respect to such item or service, for purposes of making such determination, an entity certified under paragraph
(7)that— is not a party to such determination or an employee or agent of such a party; does not have a material familial, financial, or professional relationship with such a party; and does not otherwise have a conflict of interest with such a party (as determined by the Secretary); and that requires, in the case such parties do not make such selection by such last day, the Secretary to, not later than 6 days after such date of initiation— select such an entity that satisfies clauses
(i)through
(iii)of subparagraph (A); and provide notification of such selection to the provider or facility (as applicable) and the health plan party to such determination. An entity selected pursuant to the previous sentence to make a determination described in such sentence shall be referred to in this subsection as the selected independent entity with respect to such determination. Under the mediated dispute process, the Secretary shall specify criteria under which multiple qualified mediated dispute items and services are permitted to be considered jointly as part of a single determination by an entity for purposes of encouraging the efficiency (including minimizing costs) of the mediated dispute process. Such items and services may be so considered only if— such items and services to be included in such determination are furnished by the same provider or facility; payment for such items and services is required to be made by the same health plan; and such items and services are related to the treatment of a similar condition. In carrying out subparagraph (A), the Secretary shall provide that, in the case of items and services which are included by a provider or facility as part of a bundled payment, such items and services included in such bundled payment may be part of a single determination under this subsection. For purposes of permitting joint consideration of qualified mediated dispute items and services as part of a single determination under the criteria specified pursuant to subparagraph (A), the Secretary may waive any deadline specified in this subsection. Not later than 30 days after the date of initiation of the mediated dispute resolution, with respect to a qualified mediated dispute item or service, the selected independent entity with respect to a determination under this subsection for such item or service shall— taking into account only the considerations specified in subparagraph (C)(i), select one of the offers submitted under subparagraph
(B)to be the amount of payment for such item or service determined under this subsection for purposes of subsection (b)(1), (e)(1), or (i)(1), as applicable; and notify the provider or facility and the health plan party to such determination of the offer selected under clause (i). Not later than 10 days after the date of initiation of the mediated dispute resolution with respect to a determination for a qualified mediated dispute item or service, the provider or facility and the health plan party to such determination shall each submit to the selected independent entity— an offer for a payment amount under for such item or service furnished by such provider or facility; information relating to such offer; and such other information as requested by the selected independent entity. For purposes of subparagraph (A), the considerations specified in this subparagraph, with respect to a determination for a qualified mediated dispute item or service, are the following: The median contracted rate for such item or service. Subject to clause (ii), information that is submitted pursuant to subparagraph (B). In making a determination with respect to a qualified mediated dispute item or service pursuant to subparagraph (A)(i), a selected independent entity may not take into account usual and customary charges for the item or service nor charges billed by the provider or facility for the item or service. Not later than 5 days after receiving a notification described in paragraph (5)(A)(ii) from a selected independent entity with respect to the determination of a payment amount for a qualified mediated dispute item or service, the party to such determination whose offer submitted under paragraph (5)(B) was not selected by the entity shall pay to such entity a fee in compensation for the services of such entity in accordance with the guidelines on such compensation established by the Secretary under subparagraph (B). For purposes of subparagraph (A), the Secretary shall establish guidelines with respect to the compensation of a selected independent entity for the services of such entity with respect to determinations under the mediated dispute process. Such guidelines shall provide that such compensation reimburses the entity for at least the costs of such entity in performing the duties of the entity under the mediated dispute process. The Secretary shall establish or recognize a process to certify (including recertification of) entities under this paragraph. Such process shall ensure that an entity so certified— has (directly or through contracts or other arrangements) sufficient medical, legal, and other expertise and sufficient staffing to make determinations described in paragraph
(2)on a timely basis; is not— a health plan, provider, or facility; an affiliate or a subsidiary of a health plan, provider, or facility; or an affiliate or subsidiary of a professional or trade association of health plans or of providers or facilities; carries out the responsibilities of such an entity in accordance with this subsection; meets appropriate indicators of fiscal integrity; maintains the confidentiality (in accordance with regulations promulgated by the Secretary) of individually identifiable health information obtained in the course of conducting such determinations; does not under the mediated dispute process carry out any determination with respect to which the entity would not pursuant to clause (i), (ii), or
(iii)of paragraph (3)(A) be eligible for selection; and meets such other requirements as determined appropriate by the Secretary. Subject to subparagraph (C), each certification (including a recertification) of an entity under the process described in subparagraph
(A)shall be for a 5-year period. A certification of an entity under this paragraph may be revoked under the process described in subparagraph
(A)if the entity has a pattern or practice of noncompliance with any of the requirements described in such subparagraph. The process described in subparagraph
(A)shall ensure that an individual, provider, facility, or health plan may petition for a denial of a certification or a revocation of a certification with respect to an entity under this paragraph for failure of meeting a requirement of this subsection. The process described in subparagraph
(A)shall ensure that a sufficient number of entities are certified under this paragraph to ensure the timely and efficient provision of determinations described in paragraph (2). An entity certified under this paragraph shall provide to the Secretary, in such manner as the Secretary may require and on a quarterly basis (as specified by the Secretary), such information as the Secretary determines appropriate to assure compliance with the requirements described in subparagraph
(A)and to monitor and assess the determinations made by such entity and to ensure the absence of bias in making such determinations. Such information shall include information described in clause
(ii)but shall not include individually identifiable health information. The information described in this clause with respect to an entity is the following: The number of payment determinations described in paragraph
(2)made by such entity, disaggregated by— the line of business (as specified in subsection (k)(8)(C)) of the health plans party to such determinations; and the type of providers and facilities party to such determinations. A description of each item or service included in each such determination. The amount of each offer submitted to the entity for each such determination. The amount of each such determination. The length of time in making each such determination. The compensation paid to such entity with respect to each such determination. Any other information specified by the Secretary. Each party to a determination to which an entity is selected under paragraph
(3)in a year shall pay to the Secretary, at such time and in such manner as specified by the Secretary, a fee for participating in the mediated dispute process with respect to such determination in an amount described in subparagraph
(B)for such year. The amount described in this subparagraph for a year is an amount established by the Secretary in a manner such that the total amount of fees paid under this paragraph for such year is estimated to be equal to the amount of expenditures estimated to be made by the Secretary for such year in carrying out the mediated dispute process. Beginning not later than July 1, 2023, the Secretary shall, in coordination with the Secretary of the Treasury and the Secretary of Labor, periodically study and submit to Congress a report on— the extent to which the payment amount determined under this subsection for an item or service furnished in a year (or otherwise agreed to by a health plan and provider or facility for purposes of determining payment by the plan to the provider or facility pursuant to subsection (b)(1), (e)(1), or (i)(1)) differs from the median contracted rate for such item or service and year, including the number of times such determined (or agreed to) amount exceeds such median contracted rate; and the effect of such difference on the cost-sharing for such item or service for a participant, beneficiary, or enrollee of a health plan. Beginning with July 1, 2023, and for each calendar quarter thereafter, the Secretary shall, in coordination with the Secretary of the Treasury and the Secretary of Labor, make publicly available a summary of the following: The information described in subclauses
(I)through
(V)of clause
(ii)of paragraph (7)(F) that was submitted to the Secretary under clause
(i)of such paragraph during such quarter. The amount of expenditures made by the Secretary during such year to carry out the mediated dispute process. The total amount of fees paid under paragraph
(8)during such quarter. The total amount of compensation paid to selected independent entities under paragraph
(6)during such quarter. . Section 9816 of the Internal Revenue Code of 1986, as added by section 2(b) and amended by sections 3(b), 5(b), and 6(b), is further amended by inserting before subsection
(k)the following new subsection: With respect to an item or service furnished in a year by a nonparticipating provider or a nonparticipating facility, with respect to a health plan, in a State described in subparagraph
(B)of subsection (k)(11) with respect to such plan and provider or facility, and for which a payment is required to be made by the health plan pursuant to subsection (b)(1), (e)(1), or (i)(1), the provider or facility (as applicable) or plan may, during the 30-day period beginning on the day the provider or facility receives a response from the plan regarding a claim for payment for such item or service, initiate open negotiations under this paragraph between such provider or facility and plan for purposes of determining, during the open negotiation period, an amount agreed on by such provider or facility, respectively, and such plan for payment (including any cost-sharing) for such item or service. For purposes of this subsection, the open negotiation period, with respect to an item or service, is the 30-day period beginning on the date of initiation of the negotiations with respect to such item or service. In carrying out negotiations initiated under subparagraph (A), with respect to an item or service described in such subparagraph furnished in a year, not later than the fifth business day of the open negotiation period described in such subparagraph with respect to such item or service— the health plan that is party to such negotiations shall notify the provider or facility that is party to such negotiations of the median contracted rate for such item or service and year; and such provider or facility shall notify such health plan of— the median of the total amount of reimbursement (including any cost-sharing) paid, for the most recent year for which information is available, to such provider or facility for furnishing such item or service to a participant or beneficiary of a health plan that, at the time such item or service was furnished, had a contract in effect with such provider or facility with respect to the furnishing of such item or service; in the case that information described in subclause
(I)is not available, such information as specified by the Secretary; and any additional information specified by the Secretary. In the case of open negotiations pursuant to subparagraph (A), with respect to an item or service, that do not result in a determination of an amount of payment for such item or service by the last day of the open negotiation period described in such subparagraph with respect to such item or service, the provider or facility (as applicable) or health plan that was party to such negotiations may, during the 2-day period beginning on the day after such open negotiation period, initiate the mediated dispute process under paragraph
(2)with respect to such item or service. The mediated dispute process shall be initiated by a party pursuant to the previous sentence by submission to the other party and to the Secretary of a notification (containing such information as specified by the Secretary) and for purposes of this subsection, the date of initiation of such process shall be the date of such submission or such other date specified by the Secretary pursuant to regulations that is not later than the date of receipt of such notification by both the other party and the Secretary. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Health and Human Services and the Secretary of Labor, shall establish a process (in this subsection referred to as the mediated dispute process ) under which, in the case of an item or service with respect to which a provider or facility (as applicable) or health plan submits a notification under paragraph (1)(C) (in this subsection referred to as a qualified mediated dispute item or service ), an entity selected under paragraph
(3)determines, subject to subparagraph
(B)and in accordance with the succeeding provisions of this subsection, the amount of payment under the health plan for such item or service furnished by such provider or facility. Under the mediated dispute process, in the case that the parties to a determination for a qualified mediated dispute item or service agree on a payment amount for such item or service during such process but before the date on which the entity selected with respect to such determination under paragraph
(3)makes such determination, such amount shall be treated for purposes of subsection (k)(11)(B) as the amount agreed to by such parties for such item or service. In the case of an agreement described in the previous sentence, the mediated dispute process shall provide for a method to determine how to allocate between the parties to such determination the payment of the compensation of the entity selected with respect to such determination. Under the mediated dispute process, the Secretary shall, with respect to the determination of the amount of payment under this subsection of a qualified mediated dispute item or service, provide for a method— that allows the parties to such determination to jointly select, not later than the last day of the 3-day period following the date of the initiation of the process with respect to such item or service, for purposes of making such determination, an entity certified under paragraph
(7)that— is not a party to such determination or an employee or agent of such a party; does not have a material familial, financial, or professional relationship with such a party; and does not otherwise have a conflict of interest with such a party (as determined by the Secretary); and that requires, in the case such parties do not make such selection by such last day, the Secretary to, not later than 6 days after such date of initiation— select such an entity that satisfies clauses
(i)through
(iii)of subparagraph (A); and provide notification of such selection to the provider or facility (as applicable) and the health plan party to such determination. An entity selected pursuant to the previous sentence to make a determination described in such sentence shall be referred to in this subsection as the selected independent entity with respect to such determination. Under the mediated dispute process, the Secretary shall specify criteria under which multiple qualified mediated dispute items and services are permitted to be considered jointly as part of a single determination by an entity for purposes of encouraging the efficiency (including minimizing costs) of the mediated dispute process. Such items and services may be so considered only if— such items and services to be included in such determination are furnished by the same provider or facility; payment for such items and services is required to be made by the same health plan; and such items and services are related to the treatment of a similar condition. In carrying out subparagraph (A), the Secretary shall provide that, in the case of items and services which are included by a provider or facility as part of a bundled payment, such items and services included in such bundled payment may be part of a single determination under this subsection. For purposes of permitting joint consideration of qualified mediated dispute items and services as part of a single determination under the criteria specified pursuant to subparagraph (A), the Secretary may waive any deadline specified in this subsection. Not later than 30 days after the date of initiation of the mediated dispute resolution, with respect to a qualified mediated dispute item or service, the selected independent entity with respect to a determination under this subsection for such item or service shall— taking into account only the considerations specified in subparagraph (C)(i), select one of the offers submitted under subparagraph
(B)to be the amount of payment for such item or service determined under this subsection for purposes of subsection (b)(1), (e)(1), or (i)(1), as applicable; and notify the provider or facility and the health plan party to such determination of the offer selected under clause (i). Not later than 10 days after the date of initiation of the mediated dispute resolution with respect to a determination for a qualified mediated dispute item or service, the provider or facility and the health plan party to such determination shall each submit to the selected independent entity— an offer for a payment amount under for such item or service furnished by such provider or facility; information relating to such offer; and such other information as requested by the selected independent entity. For purposes of subparagraph (A), the considerations specified in this subparagraph, with respect to a determination for a qualified mediated dispute item or service, are the following: The median contracted rate for such item or service. Subject to clause (ii), information that is submitted pursuant to subparagraph (B). In making a determination with respect to a qualified mediated dispute item or service pursuant to subparagraph (A)(i), a selected independent entity may not take into account usual and customary charges for the item or service nor charges billed by the provider or facility for the item or service. Not later than 5 days after receiving a notification described in paragraph (5)(A)(ii) from a selected independent entity with respect to the determination of a payment amount for a qualified mediated dispute item or service, the party to such determination whose offer submitted under paragraph (5)(B) was not selected by the entity shall pay to such entity a fee in compensation for the services of such entity in accordance with the guidelines on such compensation established by the Secretary under subparagraph (B). For purposes of subparagraph (A), the Secretary shall establish guidelines with respect to the compensation of a selected independent entity for the services of such entity with respect to determinations under the mediated dispute process. Such guidelines shall provide that such compensation reimburses the entity for at least the costs of such entity in performing the duties of the entity under the mediated dispute process. The Secretary shall establish or recognize a process to certify (including recertification of) entities under this paragraph. Such process shall ensure that an entity so certified— has (directly or through contracts or other arrangements) sufficient medical, legal, and other expertise and sufficient staffing to make determinations described in paragraph
(2)on a timely basis; is not— a health plan, provider, or facility; an affiliate or a subsidiary of a health plan, provider, or facility; or an affiliate or subsidiary of a professional or trade association of health plans or of providers or facilities; carries out the responsibilities of such an entity in accordance with this subsection; meets appropriate indicators of fiscal integrity; maintains the confidentiality (in accordance with regulations promulgated by the Secretary) of individually identifiable health information obtained in the course of conducting such determinations; does not under the mediated dispute process carry out any determination with respect to which the entity would not pursuant to clause (i), (ii), or
(iii)of paragraph (3)(A) be eligible for selection; and meets such other requirements as determined appropriate by the Secretary. Subject to subparagraph (C), each certification (including a recertification) of an entity under the process described in subparagraph
(A)shall be for a 5-year period. A certification of an entity under this paragraph may be revoked under the process described in subparagraph
(A)if the entity has a pattern or practice of noncompliance with any of the requirements described in such subparagraph. The process described in subparagraph
(A)shall ensure that an individual, provider, facility, or health plan may petition for a denial of a certification or a revocation of a certification with respect to an entity under this paragraph for failure of meeting a requirement of this subsection. The process described in subparagraph
(A)shall ensure that a sufficient number of entities are certified under this paragraph to ensure the timely and efficient provision of determinations described in paragraph (2). An entity certified under this paragraph shall provide to the Secretary, in such manner as the Secretary may require and on a quarterly basis (as specified by the Secretary), such information as the Secretary determines appropriate to assure compliance with the requirements described in subparagraph
(A)and to monitor and assess the determinations made by such entity and to ensure the absence of bias in making such determinations. Such information shall include information described in clause
(ii)but shall not include individually identifiable health information. The information described in this clause with respect to an entity is the following: The number of payment determinations described in paragraph
(2)made by such entity, disaggregated by— the line of business (as specified in subsection (k)(8)(C)) of the health plans party to such determinations; and the type of providers and facilities party to such determinations. A description of each item or service included in each such determination. The amount of each offer submitted to the entity for each such determination. The amount of each such determination. The length of time in making each such determination. The compensation paid to such entity with respect to each such determination. Any other information specified by the Secretary. Each party to a determination to which an entity is selected under paragraph
(3)in a year shall pay to the Secretary, at such time and in such manner as specified by the Secretary, a fee for participating in the mediated dispute process with respect to such determination in an amount described in subparagraph
(B)for such year. The amount described in this subparagraph for a year is an amount established by the Secretary in a manner such that the total amount of fees paid under this paragraph for such year is estimated to be equal to the amount of expenditures estimated to be made by the Secretary for such year in carrying out the mediated dispute process. Beginning not later than July 1, 2023, the Secretary shall, in coordination with the Secretary of Health and Human Services and the Secretary of Labor, periodically study and submit to Congress a report on— the extent to which the payment amount determined under this subsection for an item or service furnished in a year (or otherwise agreed to by a health plan and provider or facility for purposes of determining payment by the plan to the provider or facility pursuant to subsection (b)(1), (e)(1), or (i)(1)) differs from the median contracted rate for such item or service and year, including the number of times such determined (or agreed to) amount exceeds such median contracted rate; and the effect of such difference on the cost-sharing for such item or service for a participant or beneficiary of a health plan. Beginning with July 1, 2023, and for each calendar quarter thereafter, the Secretary shall, in coordination with the Secretary of Health and Human Services and the Secretary of Labor, make publicly available a summary of the following: The information described in subclauses
(I)through
(V)of clause
(ii)of paragraph (7)(F) that was submitted to the Secretary under clause
(i)of such paragraph during such quarter. The amount of expenditures made by the Secretary during such year to carry out the mediated dispute process. The total amount of fees paid under paragraph
(8)during such quarter. The total amount of compensation paid to selected independent entities under paragraph
(6)during such quarter. . Section 716 of the Employee Retirement Income Security Act of 1974, as added by section 2(c) and amended by sections 3(c), 5(c), and 6(c), is further amended by inserting before subsection
(k)the following new subsection: With respect to an item or service furnished in a year by a nonparticipating provider or a nonparticipating facility, with respect to a health plan, in a State described in subparagraph
(B)of subsection (k)(11) with respect to such plan and provider or facility, and for which a payment is required to be made by the health plan pursuant to subsection (b)(1), (e)(1), or (i)(1), the provider or facility (as applicable) or plan may, during the 30-day period beginning on the day the provider or facility receives a response from the plan regarding a claim for payment for such item or service, initiate open negotiations under this paragraph between such provider or facility and plan for purposes of determining, during the open negotiation period, an amount agreed on by such provider or facility, respectively, and such plan for payment (including any cost-sharing) for such item or service. For purposes of this subsection, the open negotiation period, with respect to an item or service, is the 30-day period beginning on the date of initiation of the negotiations with respect to such item or service. In carrying out negotiations initiated under subparagraph (A), with respect to an item or service described in such subparagraph furnished in a year, not later than the fifth business day of the open negotiation period described in such subparagraph with respect to such item or service— the health plan that is party to such negotiations shall notify the provider or facility that is party to such negotiations of the median contracted rate for such item or service and year; and such provider or facility shall notify such health plan of— the median of the total amount of reimbursement (including any cost-sharing) paid, for the most recent year for which information is available, to such provider or facility for furnishing such item or service to a participant or beneficiary of a health plan that, at the time such item or service was furnished, had a contract in effect with such provider or facility with respect to the furnishing of such item or service; in the case that information described in subclause
(I)is not available, such information as specified by the Secretary; and any additional information specified by the Secretary. In the case of open negotiations pursuant to subparagraph (A), with respect to an item or service, that do not result in a determination of an amount of payment for such item or service by the last day of the open negotiation period described in such subparagraph with respect to such item or service, the provider or facility (as applicable) or health plan that was party to such negotiations may, during the 2-day period beginning on the day after such open negotiation period, initiate the mediated dispute process under paragraph
(2)with respect to such item or service. The mediated dispute process shall be initiated by a party pursuant to the previous sentence by submission to the other party and to the Secretary of a notification (containing such information as specified by the Secretary) and for purposes of this subsection, the date of initiation of such process shall be the date of such submission or such other date specified by the Secretary pursuant to regulations that is not later than the date of receipt of such notification by both the other party and the Secretary. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Health and Human Services and the Secretary of the Treasury, shall establish a process (in this subsection referred to as the mediated dispute process ) under which, in the case of an item or service with respect to which a provider or facility (as applicable) or health plan submits a notification under paragraph (1)(C) (in this subsection referred to as a qualified mediated dispute item or service ), an entity selected under paragraph
(3)determines, subject to subparagraph
(B)and in accordance with the succeeding provisions of this subsection, the amount of payment under the health plan for such item or service furnished by such provider or facility. Under the mediated dispute process, in the case that the parties to a determination for a qualified mediated dispute item or service agree on a payment amount for such item or service during such process but before the date on which the entity selected with respect to such determination under paragraph
(3)makes such determination, such amount shall be treated for purposes of subsection (k)(11)(B) as the amount agreed to by such parties for such item or service. In the case of an agreement described in the previous sentence, the mediated dispute process shall provide for a method to determine how to allocate between the parties to such determination the payment of the compensation of the entity selected with respect to such determination. Under the mediated dispute process, the Secretary shall, with respect to the determination of the amount of payment under this subsection of a qualified mediated dispute item or service, provide for a method— that allows the parties to such determination to jointly select, not later than the last day of the 3-day period following the date of the initiation of the process with respect to such item or service, for purposes of making such determination, an entity certified under paragraph
(7)that— is not a party to such determination or an employee or agent of such a party; does not have a material familial, financial, or professional relationship with such a party; and does not otherwise have a conflict of interest with such a party (as determined by the Secretary); and that requires, in the case such parties do not make such selection by such last day, the Secretary to, not later than 6 days after such date of initiation— select such an entity that satisfies clauses
(i)through
(iii)of subparagraph (A); and provide notification of such selection to the provider or facility (as applicable) and the health plan party to such determination. An entity selected pursuant to the previous sentence to make a determination described in such sentence shall be referred to in this subsection as the selected independent entity with respect to such determination. Under the mediated dispute process, the Secretary shall specify criteria under which multiple qualified mediated dispute items and services are permitted to be considered jointly as part of a single determination by an entity for purposes of encouraging the efficiency (including minimizing costs) of the mediated dispute process. Such items and services may be so considered only if— such items and services to be included in such determination are furnished by the same provider or facility; payment for such items and services is required to be made by the same health plan; and such items and services are related to the treatment of a similar condition. In carrying out subparagraph (A), the Secretary shall provide that, in the case of items and services which are included by a provider or facility as part of a bundled payment, such items and services included in such bundled payment may be part of a single determination under this subsection. For purposes of permitting joint consideration of qualified mediated dispute items and services as part of a single determination under the criteria specified pursuant to subparagraph (A), the Secretary may waive any deadline specified in this subsection. Not later than 30 days after the date of initiation of the mediated dispute resolution, with respect to a qualified mediated dispute item or service, the selected independent entity with respect to a determination under this subsection for such item or service shall— taking into account only the considerations specified in subparagraph (C)(i), select one of the offers submitted under subparagraph
(B)to be the amount of payment for such item or service determined under this subsection for purposes of subsection (b)(1), (e)(1), or (i)(1), as applicable; and notify the provider or facility and the health plan party to such determination of the offer selected under clause (i). Not later than 10 days after the date of initiation of the mediated dispute resolution with respect to a determination for a qualified mediated dispute item or service, the provider or facility and the health plan party to such determination shall each submit to the selected independent entity— an offer for a payment amount under for such item or service furnished by such provider or facility; information relating to such offer; and such other information as requested by the selected independent entity. For purposes of subparagraph (A), the considerations specified in this subparagraph, with respect to a determination for a qualified mediated dispute item or service, are the following: The median contracted rate for such item or service. Subject to clause (ii), information that is submitted pursuant to subparagraph (B). In making a determination with respect to a qualified mediated dispute item or service pursuant to subparagraph (A)(i), a selected independent entity may not take into account usual and customary charges for the item or service nor charges billed by the provider or facility for the item or service. Not later than 5 days after receiving a notification described in paragraph (5)(A)(ii) from a selected independent entity with respect to the determination of a payment amount for a qualified mediated dispute item or service, the party to such determination whose offer submitted under paragraph (5)(B) was not selected by the entity shall pay to such entity a fee in compensation for the services of such entity in accordance with the guidelines on such compensation established by the Secretary under subparagraph (B). For purposes of subparagraph (A), the Secretary shall establish guidelines with respect to the compensation of a selected independent entity for the services of such entity with respect to determinations under the mediated dispute process. Such guidelines shall provide that such compensation reimburses the entity for at least the costs of such entity in performing the duties of the entity under the mediated dispute process. The Secretary shall establish or recognize a process to certify (including recertification of) entities under this paragraph. Such process shall ensure that an entity so certified— has (directly or through contracts or other arrangements) sufficient medical, legal, and other expertise and sufficient staffing to make determinations described in paragraph
(2)on a timely basis; is not— a health plan, provider, or facility; an affiliate or a subsidiary of a health plan, provider, or facility; or an affiliate or subsidiary of a professional or trade association of health plans or of providers or facilities; carries out the responsibilities of such an entity in accordance with this subsection; meets appropriate indicators of fiscal integrity; maintains the confidentiality (in accordance with regulations promulgated by the Secretary) of individually identifiable health information obtained in the course of conducting such determinations; does not under the mediated dispute process carry out any determination with respect to which the entity would not pursuant to clause (i), (ii), or
(iii)of paragraph (3)(A) be eligible for selection; and meets such other requirements as determined appropriate by the Secretary. Subject to subparagraph (C), each certification (including a recertification) of an entity under the process described in subparagraph
(A)shall be for a 5-year period. A certification of an entity under this paragraph may be revoked under the process described in subparagraph
(A)if the entity has a pattern or practice of noncompliance with any of the requirements described in such subparagraph. The process described in subparagraph
(A)shall ensure that an individual, provider, facility, or health plan may petition for a denial of a certification or a revocation of a certification with respect to an entity under this paragraph for failure of meeting a requirement of this subsection. The process described in subparagraph
(A)shall ensure that a sufficient number of entities are certified under this paragraph to ensure the timely and efficient provision of determinations described in paragraph (2). An entity certified under this paragraph shall provide to the Secretary, in such manner as the Secretary may require and on a quarterly basis (as specified by the Secretary), such information as the Secretary determines appropriate to assure compliance with the requirements described in subparagraph
(A)and to monitor and assess the determinations made by such entity and to ensure the absence of bias in making such determinations. Such information shall include information described in clause
(ii)but shall not include individually identifiable health information. The information described in this clause with respect to an entity is the following: The number of payment determinations described in paragraph
(2)made by such entity, disaggregated by— the line of business (as specified in subsection (k)(8)(C)) of the health plans party to such determinations; and the type of providers and facilities party to such determinations. A description of each item or service included in each such determination. The amount of each offer submitted to the entity for each such determination. The amount of each such determination. The length of time in making each such determination. The compensation paid to such entity with respect to each such determination. Any other information specified by the Secretary. Each party to a determination to which an entity is selected under paragraph
(3)in a year shall pay to the Secretary, at such time and in such manner as specified by the Secretary, a fee for participating in the mediated dispute process with respect to such determination in an amount described in subparagraph
(B)for such year. The amount described in this subparagraph for a year is an amount established by the Secretary in a manner such that the total amount of fees paid under this paragraph for such year is estimated to be equal to the amount of expenditures estimated to be made by the Secretary for such year in carrying out the mediated dispute process. Beginning not later than July 1, 2023, the Secretary shall, in coordination with the Secretary of Health and Human Services and the Secretary of the Treasury, periodically study and submit to Congress a report on— the extent to which the payment amount determined under this subsection for an item or service furnished in a year (or otherwise agreed to by a health plan and provider or facility for purposes of determining payment by the plan to the provider or facility pursuant to subsection (b)(1), (e)(1), or (i)(1)) differs from the median contracted rate for such item or service and year, including the number of times such determined (or agreed to) amount exceeds such median contracted rate; and the effect of such difference on the cost-sharing for such item or service for a participant or beneficiary of a health plan. Beginning with July 1, 2023, and for each calendar quarter thereafter, the Secretary shall, in coordination with the Secretary of Health and Human Services and the Secretary of Labor, make publicly available a summary of the following: The information described in subclauses
(I)through
(V)of clause
(ii)of paragraph (7)(F) that was submitted to the Secretary under clause
(i)of such paragraph during such quarter. The amount of expenditures made by the Secretary during such year to carry out the mediated dispute process. The total amount of fees paid under paragraph
(8)during such quarter. The total amount of compensation paid to selected independent entities under paragraph
(6)during such quarter. . Nothing in this Act, or the amendment made by this Act, shall be construed as removing any obligation of a health plan (as defined in subsection (k)(6) of section 2719A of the Public Health Service Act (42 U.S.C. 300gg–19A), as amended by this Act) to provide payment to a health care provider or health care facility for items and services furnished by such provider or facility to an individual enrolled in such plan.
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- 42 USC 300gg–19a
- 42 USC 300gg–19A
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cites case law
Sec. 7
Determination through open negotiation and mediation of out-of-network rates to be paid by health plans
Cite42 USC 300gg–19a
Cite42 USC 300gg–19A
Cites 2Cited by 0 across 0 sources