Patient advocates, unions and business groups are urging President Joe Biden's administration to make clear that arbitration should only be used as a "last resort" in out-of-network billing disputes.
In a letter to HHS Secretary Xavier Becerra and other cabinet officers, AFL-CIO, the American Benefits Council and dozens of other groups representing large employers, union members and patients expressed concern that providers could abuse the arbitration process under the new surprise billing ban to inflate costs.
HHS is beginning to implement the No Surprises Act Congress passed last year. The department is currently ironing out the independent dispute resolution process that providers and payers can use to resolve disagreements over payments for out-of-network charges.
HHS issued an interim final rule last month banning surprise billing for emergency care, high cost-sharing for out-of-network services, out-of-network charges from ancillary providers such as anesthesiologists or assistant surgeons, and out-of-network charges from providers who don't notify patients they are not in-network.
"The No Surprises Act was intended to reduce overall healthcare costs by correcting a longstanding market failure," the groups wrote in the letter to Becerra, Treasury Secretary Janet Yellen and Labor Secretary Martin Walsh on Monday.
"Achieving this goal will require that [independent dispute resolution] is used as a limited, last resort for disputes that cannot be negotiated, rather than an avenue for inflating costs once the patient is taken out of the middle."
The groups cited "rampant misuse" of the independent dispute resolution process under New Jersey's, New York's and Texas's suprise billing laws, alleging that "out-of-network providers and private equity firms take advantage of [independent dispute resolution] to bolster their bottom lines at patients' expense."
Some House Democrats, led by Rep. Jan Schakowsky (Ill.), agree, writing in a letter to Becerra last month that regulations should ensure arbitration shouldn't be abused.
Meanwhile, provider groups have warned HHS against tilting the arbitration process toward insurers.
The Federation of American Hospitals want arbiters to be able to consider several factors when determining the out-of-network rate for a service, including level of training and experience of a provider, market share held by the provider or plan and patient acuity.
