State Law

Delaware Code-Title 18-Insurance Code-Chapter 3. The Insurance Commissioner

08/01/2023 Delaware Section 333

Arbitration of disputes between insurance carriers and health-care providers

OON-Payment Issues

(a) Definitions. — The following definitions shall apply with respect to this section:

(1) “Health-care provider” means a person, corporation, facility or institution licensed by this State pursuant to Title 24 or Title 16 to provide health-care or professional services or any officers, employees or agents thereof acting within the scope of their employment; provided, however, that the term “health-care provider” shall not mean or include the following:

a. Any nursing service or nursing facility conducted by or for those who rely upon treatment solely by spiritual means in accordance with the creed or tenets of any generally recognized church or religious denomination;

b. Any long-term care facility, as defined at § 1102 of Title 16 or its successor; and

c. Any hospital as defined at § 1001 of Title 16 or its successor.

(2) “Insurance carrier” means any entity that provides health insurance in this State. For the purposes of this section, “carrier” includes an insurance company, health services corporation, health maintenance organization and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. “Carrier” also includes any third-party administrator or other entity that adjusts, administers or settles claims in connection with health benefit plans.

(b) Every insurance carrier shall be required to submit to arbitration, in the manner set forth in this section, any dispute with a health-care provider regarding reimbursement for an individual claim, procedure or service by that health-care provider for health-care services, upon a request for arbitration by the health-care provider. A request for arbitration shall be made within 60 days after the receipt of the decision rendered by the insurance carrier. The Commissioner shall promulgate regulations addressing the manner in which health-care providers must be informed of the availability of arbitration under this section.

(c) By requesting arbitration pursuant to this chapter, a health-care provider shall be deemed to have agreed that it will not bill its patient for the difference between its charge and any reimbursement awarded by the arbitrator if it is forbidden from such billing by its contract with the carrier against whom the award is entered.

(d) The arbitration program shall be administered by the Department of Insurance.

(e) The Commissioner shall establish a panel of arbitrators, from which the Commissioner or the Commissioner’s designee will select 1 person to hear each request for arbitration. No cause of action shall arise nor shall any liability be imposed against any individual appointed as arbitrator for any conduct performed in good faith while carrying out the provisions of this section. In establishing the panel of arbitrators required by this subsection, the Commissioner shall endeavor to appoint persons qualified to hear both legal and medical disputes.

(f) The losing party in an arbitration conducted pursuant to this section shall have a right to trial de novo in the Superior Court so long as notice of appeal is filed with that Court in the manner set forth by Superior Court rules within 30 days of the date of the arbitration decision being rendered.

(g) The Commissioner shall establish a schedule of fees for arbitration, which shall not exceed $100 per arbitration. The arbitrator may award to the health-care provider the cost of filing the arbitration if the health-care provider should prevail.

(h) The cost of arbitration shall be payable to the Department of Insurance, and shall be maintained in a special fund identified as the “Arbitration Fund,” which shall remain separate and segregated from the General Fund. The compensation paid to the arbitrator shall be payable from the Arbitration Fund.

(i) The Commissioner may promulgate regulations exempting insurance carriers from the requirements of this section if the carriers maintain a substantially similar program to that created by this section.

(j) The following issues shall not be subject to arbitration under this section:

(1) Disputes as to whether the patient for whom health-care services were provided was a policyholder of the insurance carrier at the time services were rendered, or was otherwise entitled by contract to receive health-care services or reimbursement for health-care services.

(2) Disputes that are already pending before a court of law.

(3) Disputes that fall under an insurance carrier’s own arbitration program, which has been granted an exemption pursuant to subsection (i) of this section.

(k) Arbitration under this section of disputes that are subject to arbitration pursuant to § 332 of this title, or resolution pursuant to § 6416 et seq. of this title, shall be stayed during the pendency of those proceedings. If a decision is entered under § 332 of this title or § 6416 et seq. of this title regarding an issue identical to one for which arbitration is sought under this section, and no appeal is pending, the decision entered under § 332 of this title or § 6416 et seq. of this title shall govern the outcome of the arbitration sought under this section.

(l) Health-care providers shall attempt to resolve disputes informally with insurance carriers before requesting arbitration pursuant to this section. The arbitrator may dismiss an arbitration petition without prejudice if the arbitrator finds that the health-care provider has not attempted to resolve the matter informally.

(m) Nothing in this section shall be construed to permit the alteration, amendment or modification of the substantive reimbursement terms of the insurance carrier’s contracts with its members or health-care providers.

(n) This section shall be construed in a manner consistent with federal law and regulations.

(o) Arbitrations conducted pursuant to this section shall be subject to the provisions of §§ 10122 and 10125 of Title 29, provided that arbitrations shall not be conducted in public. Except as otherwise provided in this subsection, arbitration proceedings shall not be considered case decisions under Chapter 101 of Title 29.

(p) The Commissioner shall promulgate regulations for purposes of implementing this section.