                                 CODE OF VIRGINIA

ARBITRATION (§ 38.2-3445.02)

A. If good faith negotiation, as described in &#xA7; 38.2-3445.01, does not
result in resolution of the dispute, and the carrier or the out-of-network
provider chooses to pursue further action to resolve the dispute, the carrier or
out-of-network provider shall initiate arbitration to determine a commercially
reasonable payment amount. To initiate arbitration, the carrier or provider
shall provide written notification to the Commission and the noninitiating party
no later than 10 calendar days following completion of the period of good faith
negotiation provided in &#xA7; 38.2-3445.01. Such notification shall state the
initiating party&#8217;s final offer. No later than 30 calendar days following
receipt of the notification, the noninitiating party shall provide its final
offer to the initiating party. The parties may reach an agreement on
reimbursement during this time and before the arbitration proceeding.

B. The parties shall be permitted to bundle claims for arbitration. Multiple
claims may be addressed in a single arbitration proceeding if the claims at
issue (i) involve identical carrier and provider parties, (ii) involve claims
with the same or related current procedural terminology codes relevant to a
particular procedure, and (iii) occur within a period of two months of one
another.

C. Within seven calendar days of receipt of notification from the initiating
party, the Commission shall provide the parties with a list of approved
arbitrators or entities that provide arbitrations. The arbitrators on the list
shall not have a conflict of interest with the parties and shall be trained and
have experience and be selected by the Commission as set out in the standards
established by the Commission through regulation. The parties may agree on an
arbitrator from the list provided by the Commission. If the parties do not agree
on an arbitrator, they shall notify the Commission, and the Commission shall
provide the parties with the names of five arbitrators from the list. Each party
may veto up to two of the five named arbitrators. If one arbitrator remains,
that arbitrator shall be the chosen arbitrator. If more than one arbitrator
remains, the Commission shall choose the arbitrator from the remaining
arbitrators. The parties and the Commission shall complete this process within
20 calendar days of receipt of the original list from the Commission.

D. No later than 30 days after final selection of the arbitrator pursuant to
subsection C, each party shall provide written submissions in support of its
position to the arbitrator. The initiating party shall include in its written
submission the evidence and methodology for asserting that the amount proposed
to be paid is or is not commercially reasonable. A party that fails to make
timely written submissions under this subsection without good cause shown shall
be considered to be in default, and the arbitrator shall require the defaulting
party to pay the final offer of the nondefaulting party and may require the
defaulting party to pay the arbitrator&#8217;s fixed fee. Written submissions
required by this subsection may be submitted electronically.

E. No later than 30 calendar days after the receipt of the parties&#8217;
written submissions, the arbitrator shall (i) issue a written decision requiring
payment of the final offer amount of either the initiating or noninitiating
party, (ii) notify the parties of the decision, and (iii) provide the decision
and the information described in subsection I to the Commission.

F. In reviewing the submissions of the parties and making a decision requiring
payment of the final offer amount of either the initiating or noninitiating
party, the arbitrator shall consider the following factors:

   1. The evidence and methodology submitted by the parties to assert that their
   final offer amount is reasonable; and

   2. Patient characteristics and the circumstances and complexity of the case,
   including time and place of service and type of facility, that are not already
   reflected in the provider&#8217;s billing code for the service.
   				The arbitrator may also consider other information that a party believes
   is relevant to the required factors included in this subsection or other
   information requested by the arbitrator and information provided by the
   parties that is relevant to such request, including data sets developed
   pursuant to &#xA7; 38.2-3445.03. The arbitrator shall not require extrinsic
   evidence of authenticity for admitting such data sets.

G. The Commission shall establish a schedule of fixed fees for the costs of
arbitration. Except as provided in subsection D, such fees shall be divided
equally among the parties to the arbitration. The enrollee shall not be liable
for any of the costs of arbitration and shall not be required to participate in
the arbitration process as a witness or otherwise.

H. Within 10 business days of a party notifying the Commission and the
noninitiating party of intent to initiate arbitrations, both parties shall agree
to and execute a nondisclosure agreement. The nondisclosure agreement shall not
preclude the arbitrator from submitting the arbitrator&#8217;s decision to the
Commission or impede the Commission&#8217;s duty to prepare the annual report
required by subsection I.

I. The Commission shall prepare an annual report summarizing the dispute
resolution information provided by arbitrators, including information related to
the matters decided through arbitration as well as the following information for
each dispute resolved through arbitration: the name of the carrier, the name of
the health care provider, the health care provider&#8217;s employer or the
business entity in which the provider has an ownership interest, the health care
facility where the services were provided, and the type of health care services
at issues. The Commission shall post the report on the Bureau&#8217;s website
and submit it to the Chairs of the House Committee on Labor and Commerce and
Committee on Appropriations and the Senate Committee on Commerce and Labor and
Committee on Finance and Appropriations annually by July 1. The provisions of
this subsection shall expire on July 1, 2025.

J. The Commission shall establish an appeals process for a party to appeal to
the Commission an arbitrator&#8217;s decision on the grounds that (i) the
decision was substantially influenced by corruption, fraud, or other undue
means; (ii) there was evident partiality, corruption, or misconduct prejudicing
the rights of any party; (iii) the arbitrator exceeded his powers; or (iv) the
arbitrator conducted the proceeding contrary to the provisions of this section
and Commission regulations, in such a way as to materially prejudice the rights
of the party.

K. The provisions of the Uniform Arbitration Act, Article 2 (&#xA7; 8.01-581.01
et seq.) of Chapter 21 of Title 8.01, shall not apply to arbitration proceedings
initiated pursuant to this section.

HISTORY: 2020, cc. 1080, 1081.