Arbitration outcomes for out-of-network planned procedures under the No Surprises Act

• In Event: Health Financing and Spending

Abstract

Background: The No Surprises Act (NSA) protects patients from surprise bills related to out-of-network care (OON), including non-emergency (planned) care delivered by OON providers at in-network facilities.  In certain cases, providers may initiate arbitration through the NSA’s dispute resolution process to determine payment.  An arbitrator chooses either the provider’s or insurer’s bid as the final award (i.e., the amount the insurer must pay for the disputed care).  Among several case-specific considerations, the arbitrator reviews the Qualifying Payment Amount (QPA), which represents the insurer’s median in-network contracted rate for the same service in the same geographic area.  Original regulations instructed arbitrators to strongly consider the QPA in their decision, though this was struck down in court. 

Objective: This study compared awards from arbitration under the NSA for certain planned, primarily elective procedures to payment benchmarks, including the QPA, in-network commercial rates, and Medicare rates. 

Methods: Using Elevance Health NSA arbitration data from January 2024 to February 2026, we identified disputed claim lines with the 25 most common CPT codes for planned surgical procedures in the dispute data, including 11 spine surgery codes, 8 plastic surgery codes, and 6 codes for other procedures. For each disputed claim line, we determined the winner (provider vs insurer) and calculated the ratio of the award to four benchmarks: 1) the QPA; 2) in-network contracted rates, derived from Transparency in Coverage files; 3) in-network Elevance Health allowed amounts, derived from claims data (weighted by provider volume); and 4) Fee-for-Service (FFS) Medicare rates.  Benchmarks 2-4 were calculated by matching the disputed line to the other data sources based on the core-based statistical area and CPT code, with adjustments for procedure modifier(s) included in the dispute.

Results: 7,304 disputed claim lines, stemming from 6,594 unique disputes and from 483 unique providers, were included in the analysis.  Of these, 2,360 (32.3%) claim lines were submitted by assistant surgeons.  6,535 (89.5%) of the claim lines were won by providers.  The median (mean) arbitration awards were 52.9 (118.6) times the QPA; 53.4 (118.3) times the median contracted rate across insurers; 28.5 (73.8) times the median in-network Elevance Health claim; and 67.4 (144.8) times the Medicare FFS price.  In cases where the insurer won, these ratios were close to one; for example, the median (mean) ratio to QPA was 1.00 (2.79).

Conclusion: While prior research has shown that awards from arbitration (including for emergency care, the most common type of dispute) are several times the QPA on average, this analysis shows that in the cases of planned, primarily elective procedures, awards are extreme, with the median award exceeding 50 times the QPA.  The NSA requires OON providers to inform patients in advance about estimated out-of-pocket costs for planned procedures, and arbitration is intended as a last resort when this process fails.  However, our study finds that certain OON providers repeatedly bring cases to arbitration and secure exceptionally high payments for elective services performed at in-network facilities, raising concern about a very costly potential abuse of the process.

Authors

• Aliza S Gordon, Elevance Health
  Non-Presenting Co-Author

• Daniel Cullen, Elevance Health
  Non-Presenting Co-Author

• Brett Alfrey, Elevance Health
  Presenting Author