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  Insurers Gaming Surprise Bill Arbitrator Selection, Surgeons Say

  Posted by name on June 27, 2024 at 6:33 pm

  Insurers Gaming Surprise Bill Arbitrator Selection, Surgeons Say

  o COURT: E.D.N.Y

  o TRACK DOCKET: No. 2:24-cv-04503

  By Lauren Clason / June 27, 2024 05:28PM ET / Bloomberg Law

  A New York neurosurgery practice is suing the Biden administration alleging that health plans are abusing the process for selecting an arbitrator when settling disputes over surprise medical bills.

  The case filed Thursday in New York federal court raises an issue that appears novel in the ongoing legal battles over the enforcement of the 2020 No Surprises Act, which requires medical providers and insurance companies to resolve billing disputes for unexpected out-of-network care, shielding the patient from surprise bills.

  Other lawsuits have targeted arbitration award enforcement, the cost of filing fees, and other aspects of the arbitration process, which recent data from the Centers for Medicare and Medicaid Services shows medical providers largely win.

  Neurological Surgery Practice of Long Island PLLC has filed at least one other lawsuit against the Health and Human Services, Labor, and Treasury departments challenging the surprise billing law’s implementation.

  Medical providers and health plans are given three business days to agree on an arbitrator under the law. But the Long Island practice argued in a complaint filed in the US District Court for the Eastern District of New York that about three months ago insurance companies began running out the clock on the process in an attempt to ensure their favored arbitrators are chosen.

  “Virtually all payers” are proposing an alternative arbitrator on the third and last day of the selection process when the provider has no time left to object, the practice argued. The proposals often come after regular business hours and just before the deadline, according to the complaint.

  “Thus, each day, the Practice and other similarly situated practices are being denied their ability to choose and object to [independent dispute resolution] IDR entities because of a concerted effort by payers to deny this choice,” the doctor group wrote.

  The surgery practice attached a chart of eight examples from March and April, showing that plans made counteroffers for an arbitrator ranging from 4:27 pm to 11:03 pm on the final day of the selection process.

  The group is accusing the administration of failing to enforce the law and asked the court to compel the departments to intervene. Medical providers should be given at least 36 hours to respond to a plan’s counteroffer for an arbitrator, and federal agencies should randomly assign an arbitrator in pending disputes where the provider was not given ample time to respond.

  The administration has refused to toss the plans’ arbitrator selections in those cases, according to the complaint. The administration pointed instead to a proposed rule (RIN: 0938-AV15) from CMS that would block plans from floating an alternative arbitrator on the third day.

  The neurology practice called the proposal “cold comfort,” noting that it has not yet been finalized. The group also said that plans are almost always choosing the arbitration entity Maximus, which it argues unfairly rules in plans’ favor.

  The DOL and Treasury Department as well as HHS didn’t immediately respond to a request for comment on the suit Thursday.

  Roy W. Breitenbach of Harris Beach PLLC represents Neurological Surgery Practice of Long Island PLLC.

  The case is Neurological Surgery Practice of Long Island, PLLC v. HHS, E.D.N.Y., No. 24-cv-04503, complaint filed 6/26/24.

  To contact the reporter on this story: Lauren Clason in Washington at lclason@bloombergindustry.com

  To contact the editors responsible for this story: Rebekah Mintzer at rmintzer@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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