RSA 420-J:8-e · Determining the Fair Value of Certain Health Care Items or Services Provided by Nonparticipating Providers

420-J:8-e Determining the Fair Value of Certain Health Care Items or Services Provided by Nonparticipating Providers. – Nonparticipating providers or emergency facilities and health carriers shall have access to a state-based independent dispute resolution (IDR) process for determining the fair value of certain health care items or services as follows:

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I.

Determination through open negotiation.

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(a)

With respect to an item or service furnished by a nonparticipating provider or nonparticipating emergency facility to which the prohibition on balance billing in RSA 358-T applies and for which a payment is required to be made by the health carrier under RSA 420-J:8-g or under RSA 420-J:8-h, the provider, facility or health carrier may, during the 30-day period beginning on the day the provider or facility receives an initial payment or a notice of denial of payment from the health carrier regarding a claim for payment for such item or service, initiate open negotiations under this paragraph between such provider or facility and health carrier for purposes of determining, during the open negotiation period, a fair value amount agreed on by the parties for payment, including any cost-sharing, for such item or service. For purposes of this paragraph, the state-based open negotiation period relating to an item or service is the 20-day period beginning on the date of initiation of the negotiations with respect to such item or service.

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(b)

Each health carrier shall provide to the commissioner a designated point of contact, including his or her email address, for open negotiations, and the commissioner shall publish and update a directory of such designated point of contacts. A provider or facility properly initiates open negotiations by emailing such designated point of contact and providing information sufficient to identify the initial payment or notice of denial of payment at issue.

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II.

Accessing the state-based IDR process in case of failed negotiations. If open negotiations with respect to an item or service under paragraph I do not result in a determination of an amount of payment for such item or service by the last day of the state-based open negotiation period, the provider or facility may initiate the state-based IDR process by delivering, simultaneously to the commissioner and to the health carrier during the 4-day period beginning on the day after the open negotiation period, a review request notification form containing such information as specified by the commissioner. The date of submission of the review request notification form shall be the date of receipt of a qualifying form by the commissioner.

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III.

Submission of offers. Not less than 10 days after the date of submission of the review request notification, the provider or facility and health carrier party to such IDR process regarding the fair value of an item or service shall each submit to the IDR entity appointed pursuant to this section:

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(a)

An offer for a payment amount for such item or service furnished by such provider or facility;

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(b)

Such information as is requested by the independent review entity relating to such offer; and

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(c)

Any information relating to the offer deemed by the provider, facility, or health carrier to be relevant to the fair value determination.

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IV.

Authority to continue negotiations. Under the state IDR process provided for in this section, in the case that the disputing parties agree on a payment amount for the item or service in dispute during the period in which the dispute is under review by the selected IDR entity and before the date on which the selected IDR entity makes its fair value determination, then such agreed amount shall qualify as the fair value amount without the necessity of a fair value determination by the IDR entity. This agreement during the period in which the dispute is before the IDR entity shall not affect the fee that the IDR entity is entitled to collect.

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V.

Considerations in the fair value determination.

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(a)

In general, in determining which offer is the payment amount to be applied pursuant to this section as the fair value of items or services rendered, the IDR entity shall consider:

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(1)

The qualifying payment amount for the item or service furnished; and

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(2)

Subject to subparagraph (c), information regarding any circumstance described in subparagraph (b), such information as is requested and received by the IDR entity, and any additional relevant information provided by the parties.

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(b)

In addition to the considerations listed in RSA 420-J:8-e, V(a), the IDR entity shall consider, if such information is provided by either of the parties:

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(1)

The level of training, experience, and quality and outcomes measurements of the provider or facility that furnished such item or service, such as those endorsed by the consensus-based entity authorized in 42 U.S.C. section 1395aaa.

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(2)

The market share held by the nonparticipating provider or facility or that of the plan or issuer in the geographic region in which the item or service was provided.

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(3)

The acuity of the individual receiving such item or service or the complexity of furnishing such item or service to such individual.

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(4)

The teaching status, case mix, and scope of services of the nonparticipating facility that furnished such item or service.

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(5)

Demonstrations of good faith efforts, or lack of good faith efforts, made by the nonparticipating provider or nonparticipating facility or the health carrier to enter into network agreements and, if applicable, contracted rates between the provider or facility, as applicable, and the health carrier, as applicable, during the previous 4 plan years.

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(c)

In determining which offer is the payment to be applied pursuant to this sub-section as the fair value of items or services rendered, the IDR entity shall not consider usual and customary charges, the amount that would have been billed by such provider or facility with respect to such items and services had the provisions of 42 U.S.C. section 300gg-131 or 300gg-132, as applicable, not applied, or the payment or reimbursement rate for such items and services furnished by such provider or facility payable by a public payor, including under the Medicare program under 42 U.S.C. 1395 et seq., under the Medicaid program under 42 U.S.C. 1396 et seq., under the Children's Health Insurance Program under 42 U.S.C. 1397aa et seq., and under the federal TRICARE program.

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VI.

Batching of items and services.

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(a)

The provider or facility initiating the IDR process described in this section may batch items and services from more than one episode of care for consideration jointly as part of a single determination by a single independent dispute resolution entity provided that the following requirements are met:

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(1)

Such items and services to be included in such determination are furnished by the same provider or facility;

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(2)

Payment for such items and services is required to be made by the same health carrier;

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(3)

Such items and services are related to the treatment of a similar condition; and

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(4)

Such items and services were furnished during the 30-day period following the date on which the first item or service included with respect to such determination was furnished or an alternative period as determined by the commissioner, for use in limited situations, such as by the consent of the parties or in the case of low-volume items and services, to encourage procedural efficiency and minimize health carrier and provider administrative costs.

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(b)

In carrying out subparagraph (a), the commissioner shall provide that, in the case of items and services which are included by a provider or facility as part of a single episode of care, the items and services furnished in that single episode of care may be part of a single fair value determination under this section.

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VII.

Fair value determination based on written record. In making the fair value determination, the IDR entity shall consider only such written material as is submitted by the parties and shall not engage in ex parte contact with either party.

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VIII.

Timing of the fair value determination. Not later than 30 days after the submission of offers under paragraph III with respect to a fair value determination for an item or service, the IDR entity shall:

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(a)

Taking into account the considerations specified in paragraph V, select one of the offers submitted under paragraph III to be the amount of payment for such item or service determined under this section; and

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(b)

Provide written notification to the provider or facility and the health carrier party to such determination of the offer selected under subparagraph (a).

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IX.

Effects of determination. The fair value decision of the IDR entity shall be binding on the parties and shall not be subject to re-review except in the case of fraud. The decision shall be enforceable against the health carrier by the commissioner pursuant to the penalty provisions of RSA 420-J:14 and under the enforcement provisions of RSA 417. The fair value dispute resolution process shall not be considered an adjudicative proceeding within the meaning of RSA 541-A, and the decision of the independent dispute resolution entity shall not be subject to rehearing and appeal pursuant to RSA 541 or RSA 400-A:17.

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X.

Timing of payment of fair value amount.

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(a)

The health carrier shall make payment to the nonparticipating provider or facility within 30 days after the date on which:

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(1)

A fair value amount is agreed on by the parties in open negotiations under paragraph I or while the dispute is before the IDR entity as provided in paragraph IV; or

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(2)

A fair value determination is made by the IDR entity under paragraph VIII.

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(b)

If the fair value amount is not paid in full within the 30-day period under subparagraph (a), the health carrier shall also be liable to the nonparticipating provider or facility for an interest payment of 5 percent per month, in addition to all other remedies otherwise provided by law. In addition, the nonparticipating provider or facility may recover from the health carrier, upon a judicial finding that the out-of-network rate was not timely paid, reasonable attorney's fees for advising and representing the nonparticipating provider or facility in an action against a carrier for prompt payment of the fair value amount.

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XI.

Certification and selection of independent dispute resolution entities.

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(a)

The commissioner shall certify independent dispute resolution entities that:

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(1)

Make application to the commissioner for certification on a form requiring such information as specified by the commissioner through an insurance department bulletin; and

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(2)

Demonstrate that they are certified as IDR entities under the federal process set out in 42 U.S.C. section 300gg-111(c)(4) or otherwise meet these federal standards for certification; and

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(3)

Satisfy such additional requirements established by the commissioner.

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(b)

The commissioner shall utilize the process set out in 42 U.S.C. section 300gg-111(c)(4)(F) for the selection of an independent dispute resolution entity to adjudicate fair value disputes under this section.

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XII.

Costs of the independent dispute resolution process.

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(a)

There shall be no administrative fee charged by the commissioner for administering the independent dispute resolution process.

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(b)

The commissioner shall establish by rulemaking a fee schedule, which may vary by complexity of the matter in dispute, that independent dispute resolution entities may charge for the review and resolution of disputes with respect to the fair value of unbatched and batched services. To the extent practicable, the fee schedule shall be sufficient to ensure that an adequate number of entities are certified as required for the timely and efficient adjudication of fair value disputes and sufficiently limited to produce a cost-effective option for disputing parties to reach a fair value amount.

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(c)

Each party participating in a fair value dispute resolution process under this section shall submit, together with its submission of an offer for a payment amount as provided under paragraph III, one half of the fee charged by the certified IDR entity. If any party does not timely submit its half of the IDR entity's fee together with its offer for a payment amount, then the IDR entity shall, without further consideration, select the offer of the party that has paid its half of the fee as the winning offer and notify the parties of the determination as provided in paragraph VIII.

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XIII.

The commissioner shall make the IDR process set out in this section available, on a case-by-case basis, to providers or facilities that are party to a fair value dispute about items or services to which the prohibition on balance billing in RSA 358-T applies. This option shall include fair value disputes in which one of the parties is a self-funded health plan not otherwise subject to regulation under this chapter only if the self-funded plan has opted into the state IDR program generally, with respect to all subsequent fair value disputes, and consented to be bound by the terms of the process as set out in this section through the submission to the commissioner of a program opt-in form which shall be made available by the commissioner.

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XIV.

The authority of the commissioner to administer the IDR process set out in this section shall arise on a case-by-case basis with respect to specific items or services as providers or facilities choose to invoke the state IDR process to determine the fair value of that item or service. This section shall constitute a "specified state law" under 42 U.S.C. section 300gg-111(a)(3)(I) contextually with respect to an item or service and only when a provider or facility has invoked the state IDR process with respect to that item or service. This section is not intended to preempt or displace the authority or obligation of the secretary of the federal department of health and human services to administer the federal IDR process as provided under 42 U.S.C. section 300gg-111 whenever the provider or facility to which the prohibition on balance billing in RSA 358-T applies does not choose to invoke the state IDR process.

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XV.

If a provider or facility that is party to a fair value dispute about items or services to which the prohibition on balance billing in RSA 358-T applies invokes the state IDR process set out in this chapter by submission of a review request notification under paragraph II, then both parties shall be precluded from accessing the federal IDR process under 42 U.S.C. section 300gg-111. If no party to a fair value dispute about items or services to which the prohibition on balance billing in RSA 358-T applies invokes the state IDR process set out in this chapter by submitting a review request notification under paragraph II within the 4-day period following the 20 day state-based open negotiation period, then the federal IDR process under 42 U.S.C. section 300gg-111 shall be available to both parties after the expiration of the federal 30-day open negotiation period as provided in 42 U.S.C. section 300gg-111(c)(1)(B).

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XVI.

If a party to a fair value dispute about items or services to which the prohibition on balance billing in RSA 358-T applies initiates the state IDR process set out in this chapter by submission of a review request notification under paragraph II, then the disputing parties shall be limited to the state IDR process for determining the fair value of all other items and services that are part of the same episode of care, and both parties shall be precluded from accessing the federal IDR process under 42 U.S.C. section 300gg-111 with respect to all such items or services.

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XVII.

The commissioner shall enter into a collaborative enforcement agreement with the Centers for Medicare and Medicaid Services (CMS) in order to set up processes and systems in coordination with CMS to resolve potential federal IDR eligibility questions arising from the case-specific applicability of the specified state law created in this chapter. Source. 2018, 356:2, eff. July 1, 2018. 2020, 27:35, eff. July 21, 2020. 2024, 143:9, eff. Jan. 1, 2025. 2025, 191:1, eff. Sept. 13, 2025.

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