Concerning the Establishment of a Carrier Payment Arbitration Program for Out-of-Network Providers
Section 1 Authority
This emergency regulation is promulgated and adopted by the Commissioner of Insurance under the authority of §§ 10-1-109(1), 10-16-109, and 10-16-704(15)(b), C.R.S.
Section 2 Scope and Purpose
The purpose of this regulation is to establish the requirements for a carrier payment dispute arbitration program; to ensure that out-of-network providers seeking arbitration concerning payment received from a carrier utilize a standard arbitration request form; and to establish qualification requirements for arbitrators who participate in this arbitration program. These requirements are being established pursuant to HB 19-1174. This regulation replaces Colorado Emergency Regulation 19-E-05 in its entirety.
Section 3 Applicability
This regulation applies to all carriers offering individual, small group and large group health benefit plans that will receive claims from out-of-network providers incurred on or after January 1, 2020 that are subject to the insurance laws of Colorado.
Section 4 Definitions
A. “Carrier” shall have the same meaning as found at § 10-16-102(8), C.R.S.
B. “Commissioner” means, for the purposes of this regulation, the Commissioner of Insurance or his or her designee.
C. “Covered person” shall have the same meaning as found at § 10-16-102(15), C.R.S.
D. “De-identified” means, for the purposes of this regulation, the removal of all information that can be used to identify the patient from whose medical record the health information was derived.
E. “Out-of-network provider” means, for the purposes of this regulation, a provider in this state that has not entered into a contract with a carrier or with its contractor or subcontractor to provide health care services to covered persons.
F. “Payment” means, for the purposes of this regulation, the amount the carrier determines to be the total allowable charge for the covered services prior to the application of the managed care plan’s in-network deductible, coinsurance, and/or copayment requirements.
G. “Provider” shall have the same meaning as found at § 10-16-102(56), C.R.S.
H. “Qualified arbitrator” means, for the purposes of this regulation, an arbitrator who has submitted an application to the Commissioner for inclusion in the list of arbitrators maintained by the Division for the purposes of carrier payment arbitration program for out-of-network providers, and who has met the qualifications contained in Section 6 of this regulation and § 10-16-704(15)(b), C.R.S.
Section 5 Arbitration Process and Timelines
A. An out-of-network provider may request arbitration within ninety (90) calendar days of receipt of the payment, notice of payment, or remittance advice, as applicable, for a claim if the out-ofnetwork provider:
1. Believes that the payment made by a carrier pursuant to §§ 10-16-704(3), 10-16-704
(5.5), or 25-3-122(3), C.R.S., as applicable, was not sufficient based upon the complexity
and circumstances of the services provided; and
2. Sent a claim for a covered service to the carrier within one hundred eighty (180) calendar
days after the receipt of insurance information, if required by § 25-3-122(3), C.R.S.
B. A request for arbitration is initiated when a request for arbitration has been filed by the out-ofnetwork provider or facility with the Commissioner and the carrier using the form found in Appendix A of this regulation, and is sent to a specific email address established by the carrier for this purpose.
Note, Appendix A may be accessed at https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=8922&fileName=3%20CCR%20702-4%20Series%204-2
C. The Commissioner shall appoint a qualified arbitrator within thirty (30) calendar days after the receipt of a request for arbitration by an out-of-network provider when an informal settlement teleconference has not been requested.
D. The out-of-network provider and the carrier may agree to participate in an informal settlement teleconference prior to the appointment of a qualified arbitrator. If the carrier does not agree to participate in a settlement teleconference, the out-of-network provider will notify the Division within three (3) business days of the carrier’s refusal to participate. If the carrier does agree to participate:
1. The informal settlement teleconference shall be held within thirty (30) calendar days of the request for arbitration;
2. The out-of-network provider and the carrier shall notify the Commissioner of the outcome
of the informal settlement teleconference within five (5) business days of the conclusion
of the teleconference and shall:
a. Advise whether or not the teleconference resulted in a settlement;
b. If a settlement was reached, provide the details of that settlement; and/or
c. If a settlement was not reached, request the appointment of an arbitrator.
E. The Commissioner shall appoint a qualified arbitrator within fifteen (15) calendar days of receiving notice that an informal settlement teleconference was unsuccessful.
F. Once the parties to the arbitration have been notified of the appointment of a qualified arbitrator by the Commissioner, each party to the arbitration must submit its final offer, and the reasoning for that offer in writing to the appointed arbitrator within thirty (30) calendar days of receipt of the notification. Any patient information submitted to the arbitrator in support of the offer being made shall be de-identified to ensure that protected health information is not disclosed.
G. If either the carrier or the out-of-network provider does not provide a final offer to the appointed arbitrator within the thirty (30) calendar days, the arbitrator must select the offer that has been received by the arbitrator.
H. If neither the carrier nor the out-of-network provider provide a final offer to the appointed arbitrator within the thirty (30) calendar days, the arbitration shall be considered complete, and the payment initially made to the out-of-network provider shall be considered to be payment in full by both parties.
I. If the carrier disagrees that the managed care plan under which the payment was made is subject to the requirements of § 10-16-704(15), C.R.S., or that the out-of-network provider complied with the requirements of Section 5.A.1., it shall have two (2) business days to provide the Commissioner with the documentation to support its determination. If the Commissioner agrees, both parties and the arbitrator shall be advised of the termination of the arbitration process within two (2) business days of the receipt of the carrier’s documentation.
J. The appointed arbitrator shall make its decision and notify the parties to the arbitration and the Commissioner, in writing utilizing the form found in Appendix B of this regulation, within forty-five (45) calendar days after the date of the arbitrator’s appointment. The arbitrator’s decision and notification shall include a description of the reasoning for the arbitrator’s decision.
Note, Appendix B may be accessed at https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=8922&fileName=3%20CCR%20702-4%20Series%204-2
K. The party whose final offer amount was not selected by the arbitrator shall pay the arbitrator’s expenses and fees within thirty (30) calendar days of receiving an invoice from the arbitrator. If the provider is responsible for paying for the arbitration after the decision has been made fails to pay for the arbitration when required, no further requests for arbitration will be accepted from that provider until any past-due payments have been resolved.
L. If the informal teleconference settlement or the arbitrator’s decision requires the carrier to make an additional payment:
1. The carrier shall re-adjudicate the relevant claim(s) within thirty (30) calendar days of the
informal teleconference settlement or the arbitrators decision or be subject to the payment of interest and penalties in accordance with § 10-16-106.5, C.R.S.; and
2. The carrier shall notify the covered person of any change to his or her deductible,
coinsurance, and/or copayment calculations and provide information regarding the out-ofnetwork provider’s responsibility to refund any overpayment pursuant to §§ 12-30-113(2)
and 25-3-122(2), C.R.S.
M. If the informal teleconference settlement or arbitrator’s decision does not require the carrier to make an additional payment:
1. The carrier shall notify the covered person of the outcome of the arbitration and advise
the covered person that the out-of-network provider is prohibited from billing the covered
person directly except for the covered person’s required deductible, coinsurance, and/or
2. The carrier’s notification shall also advise the covered person of the requirement for the
out-of-network provider to reimburse him or her within sixty (60) calendar days after the
date the out-of-network provider is notified by the carrier of an overpayment if the
covered person has paid the out-of-network provider more than amounts due related to
the covered person’s deductible, coinsurance, and/or copayment for the covered service.
N. The arbitrator’s decision is final and binding on both parties and only applies to the covered person’s services identified in the arbitration request unless the parties agree otherwise.
O. Information submitted to the Division and/or an arbitrator appointed by the Commissioner pursuant to § 10-16-704(15), C.R.S., shall be considered confidential pursuant to § 24-72-204(3), C.R.S.
Section 6 Arbitrator Qualifications and Selection
A. The Division shall post a list of qualified arbitrators on its website.
B. In order for an arbitrator to apply for consideration for inclusion on the list of qualified arbitrators, the following qualifications must be met:
1. Provide evidence of having completed arbitration training by the American Arbitration
Association or the American Health Lawyers Association, or a similar entity;
2. Demonstrate good standing with the state agency that licenses, registers or otherwise
regulates attorneys in the states in which he or she practices;
3. Demonstrate experience in health care billing and health care reimbursement rates;
4. Demonstrate and certify that neither they nor their family members have a professional
affiliation with any of the following:
a. A carrier or a professional association of carriers;
b. A health care facility or a professional association of health care facilities; and
c. Health care providers or a professional association of health care providers;
5. Provide a schedule of expenses and fees to be used for arbitrations; and
6. Agree to comply with the requirements of § 10-16-704(15) C.R.S.
C. The Commissioner shall randomly select a qualified arbitrator to conduct an initiated arbitration from the list of qualified arbitrators maintained by the Division. If the selected arbitrator is currently involved in an ongoing arbitration, another arbitrator shall be selected by the Commissioner.
D. Once a qualified arbitrator has been selected, the Division will contact the arbitrator and identify the parties involved in the request for arbitration. Prior to finalizing the appointment to conduct the arbitration, the arbitrator must attest to the Commissioner that they or a family member do not have:
1. A personal conflict of interest with any parties to the arbitration;
2. Any professional conflict of interest with any parties to the arbitration; nor
3. A financial conflict of interest with any parties to the arbitration.
If any conflicts of interest exist between the arbitrator and the parties to the arbitration, the
arbitrator shall disclose those conflicts of interest to the Commissioner within three (3) business days of being contacted by the Commissioner to oversee an arbitration, and another qualified arbitrator shall be selected.
E. The qualified arbitrator shall demonstrate that there are no conflicts of interest in the arbitration by submitting an attestation to the Commissioner. Once the attestation has been received by the Commissioner and reviewed, the Commissioner will provide final approval of the appointment to the arbitrator, and notify the parties that the arbitration can begin.
Section 8 Severability
If any provision of this regulation or the application of it to any person or circumstances is for any reason held to be invalid, the remainder of this regulation shall not be affected.
Section 9 Enforcement
Noncompliance with this regulation may result in the imposition of any of the sanctions made available in the Colorado statutes pertaining to the business of insurance, or other laws, which include the imposition of civil penalties, issuance of cease and desist orders, and/or suspensions or revocation of license, subject to the requirements of due process.
Section 10 Effective Date
This regulation shall become effective April 15, 2020.
Section 11 History
Emergency regulation effective December 20, 2019.
Regulation effective April 15, 2020.