Tell us your experiences with balance billing, out-of-network care, and arbitration.

In Virginia, we are nearly halfway through our first year with the new balance billing prohibition law. It went into effect January 1 and protects patients from getting billed by an out-of-network (OON) health care provider for emergency services at a hospital.

VACEP wants to hear from our members about the financial impacts of the legislation on your practice, specifically in relation to the arbitration process.

How arbitration works: If a patient who has health insurance is treated by an OON provider or facility for their healthcare needs, the provider or facility will submit the claim to the patient’s insurer. The insurer will then pay a “commercially reasonable amount” based on payments for the same or similar services in a similar geographic area. If the provider or facility and insurer do not agree on that amount, then an arbitration process is available to resolve disputes. This is known as Independent Dispute Resolution, or IDR.

IDR uses Virginia's All-Payer Claims Database (APCD) as a benchmark to determine the commercially reasonable amount.

But the APCD has several known flaws, including a small sample size of paid claims per region, lack of inclusion of self-funded ERISA plans (which make up most plans in Virginia), and an inability to differentiate in-network from out-of-network claims.

VACEP leadership is working at the state level to advocate for changes in the database to better reflect a true “commercially reasonable rate.” We have contracted a third-party vendor to assist in securely and legally obtaining information from each practice in Virginia, such that we are able to present evidence-based arguments on the accuracy of the APCD, the impact of balance-billing legislation on payor contract negotiations, and insight into the IDR process for our members.

The state legislation includes a process for providing feedback on “bad payors” as well as monitoring unintended consequences of the legislation.

VACEP needs your participation to advocate effectively. Please give us your stories on any experiences with the database or balance billing since January 1.

You can give us input, anonymously or with your name, on a Google Form at the button below.

Questions or concerns about the balance billing law or APCD? Contact David Fosnocht with Augusta Health, who has led OON issues for VACEP. A more detailed survey will be sent to members soon.

Additional policy background: The new Virginia balance billing law (effective January 1) prohibits balance-billing for all commercial Out of Network (OON) claims for emergency services.

The Federal No Surprise Act — included in the omnibus bill effective January 1, 2022 — provides the framework for OON billing for states without established surprise billing legislation, as well as those plans exempt from state legislation under the Employee Retirement Income Security Act of 1974 (ERISA). ERISA plans are traditionally self-funded large business health plans, which make up a significant percentage of commercial claims in Virginia.

In Virginia, our state law and procedures will supersede the federal legislation except for ERISA plans. Virginia’s balance billing law allows ERISA plans to “opt-in” to the state rules. However, pending federal regulations under the Federal No Surprises Act may not allow that option. The end result may require mastering two different sets of rules and processes to navigate the dispute resolution process based on insurance type.