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Arbitration and using the Balance Billing data set

BBPA Dispute Resolution Mechanism

On February 1, 2023, the Office of the Insurance Commissioner (OIC) released a request for information (RFI) for the Balance Billing Protection Act (BBPA) dispute resolution mechanism (PDF, 267.35 KB). The OIC requested comments as to whether, under the authority provided in RCW 48.49.040, Washington state should transition to the federal No Surprises Act Independent Dispute Resolution (IDR) process on July 1, 2023 or continue to use the BBPA arbitration system to resolve disputes between carriers (or self-funded group health plans that have elected to participate in the BBPA) and nonparticipating providers.

After reviewing comments made to the first RFI on February 1, 2023, and going over recent litigation related to the No Surprises Act IDR process, the OIC will delay the transition to the NSA IDR process for a minimum of six months.

The OIC released a second RFI for the BBPA dispute resolution mechanism (PDF, 225.37 KB) on July 20, 2023. After reviewing comments made to the July 20, 2023 RFI and considering litigation related to the No Surprises Act IDR process, the OIC will once again delay the transition to the NSA IDR process for a minimum of six months, or no earlier than July 1, 2024. 

The third RFI for the BBPA dispute resolution mechanism (PDF, 248.66 KB) was released on February 13, 2024, soliciting comments as to whether Washington state should transition to the federal NSA IDR system on July 1, 2024, or continue to use the BBPA arbitration system to resolve disputes between carriers (or self-funded group health plans that have elected to participate in the BBPA) and nonparticipating providers.

In response to comments received on the third RFI and pending federal litigation related to the federal NSA IDR process, the OIC will be delaying transition to the NSA IDR system for a minimum of 12 months or July 1, 2025.

What is the BBPA?

The Balance Billing Protection Act (BBPA) protects consumers from getting billed by a nonparticipating (also known as “out-of-network”) hospital or provider for emergency services and for nonemergency services performed by a nonparticipating provider at a participating (also known as “in-network”) hospital, including both inpatient and outpatient services, or ambulatory surgical center.

If a consumer is treated by a nonparticipating provider or facility for services covered by the BBPA, the provider or facility will submit the claim to the consumer’s insurer. They will be paid a “commercially reasonable amount” which is based on payments for the same or similar services in a similar geographic area. The insurer and facility or provider must first try to agree on this amount.

How arbitration works

If the insurer and provider or facility cannot agree on the amount for the service within 30 days, the dispute is settled through arbitration. Either party can start the arbitration process by sending a notice to the OIC. That notice must also be sent to the party that is not initiating the arbitration. For example, if a provider is initiating arbitration, the notice must be sent to the insurer.

Please visit OneHealthPort's website for their health plan arbitration contact list (OneHealthPort.com).

The parties then choose an arbitrator from a list of approved arbitrators or entities providing arbitration services. If they cannot agree on one, the list will be narrowed to five. If the parties still cannot agree, one will be assigned from the narrowed list.

The arbitrator will determine the final payment amount the insurer or provider must accept by choosing one of the parties' best final offer and then submit a decision reporting form and their decision to the OIC.  The arbitrator’s decision is final and binding on the insurer and provider.

BBPA arbitration forms and instructions

The BBPA rules include four forms that must be used for BBPA  arbitrations:

Each form and instructions for its completion can be found in the links to the documents above.

Memorandum and presentations for arbitrators regarding E2SHB 1688 (chapter 263, laws of 2022)

This memorandum addresses provisions of E2SHB 1688 that relate to arbitration proceedings under the BBPA. These changes apply to arbitration initiation requests submitted to the OIC on or after March 31, 2022.

Surprise billing data set

The BBPA requires the OIC to prepare a data set through a contract with Onpoint Health Data.  The data set was created in consultation with a workgroup that included representatives of medical providers, hospitals, ambulatory surgical centers and insurers. It serves as a source of objective information for insurers, providers and arbitrators. The data set includes the following information, by geographic area, for services covered by the BBPA:

  • The median in-network allowed amount;
  • The median out-of-network allowed amount; 
  • The median billed charge. 

The data set is based upon claims for services provided in calendar year 2018 and has been adjusted each year since 2019 by the Medical Consumer Price Index (CPI). 

A data set from the state’s All Payer Claims Database that includes services subject to the BBPA is available for insurers, providers and arbitrators as an independent source of claims payment information.

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