June 13, 2023
CMS, Of�ice of Strategic Operations and Regulatory Affairs,
Division of Regulations Development
Attention: Document Identi�ier/OMB Control Number: CMS-10853
Room C4–26–05,
7500 Security Boulevard,
Baltimore, Maryland 21244–1850
Submitted online via www.regulations.gov

Re: CMS–10853 Patient Provider Dispute Resolution Requirements Related to SurpriseBilling: Part II Proposed Collection with Request for Comments
Dear Sir/Madam:

On behalf of the American Association of Oral and Maxillofacial Surgeons (AAOMS), which
represents more than 9,000 oral and maxillofacial surgeons (OMSs) in the United States,
thank you for the opportunity to comment on the Proposed Collection of information on
the “Patient Provider Dispute Resolution Requirements Related to Surprise Billing: Part II,”as published in the Federal Register on May 2, 2023.
OMSs — many of whom are part of small practices — are an integral part of both
outpatient and hospital-based care teams, providing high-quality dental and oral
healthcare services across various treatment settings. AAOMS supports efforts to prevent
patients from being unfairly surprised by an out-of-network bill, while ensuring thatproviders have the opportunity to be reimbursed at a fair and reasonable rate.

Our Association remains committed to consumer protection and education, ensuring
patients have the tools and resources available to understand the costs of care. We
understand that the provision of good faith estimates (GFE) to uninsured (or self-pay)
individuals, as well as the patient-provider dispute resolution (PPDR) process are integral
components of the patient protections against surprise medical bills set forth under the No
Surprises Act; however, AAOMS believes that certain regulatory provisions warrant theAgency’s reconsideration both in terms of consistency of implementation and feasibility for
healthcare providers as the utilization of arbitration processes under the No Surprises Act
continues to increase.
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Payment determinations for unforeseen circumstances not included in the good faithestimate unfairly penalize providers

An integral part of the patient-provider dispute resolution process, regulation requires
both providers and facilities to submit “credible” information to select dispute resolution
entities to allow for informed payment determinations to be made in the event total billedcharges exceed the expected charges included in the good faith estimate.

When the select dispute resolution (SDR) entity or arbitrator determines the information
submitted by the provider or facility supports that the difference between the billed charge
and the expected charge re�lects the costs of a medically necessary item or service and isbased on unforeseen circumstances that could not have reasonably been anticipated, thearbitrator must determine the amount to be paid by the patient. According to regulation,for items or services furnished by the provider that were not included in the original
estimate of expected charges, the payment amount is determined as the lesser of either 1.)
the billed charge or 2.) the median payment for the same or similar service in thegeographic area as re�lected in an independent claims database. However, if the arbitrator
determines the information submitted fails to demonstrate that the billed charge re�lects
the cost of a medically necessary item or service that was, in fact, unforeseen the payment
amount is determined to be $0.
In general, healthcare practitioners strive to provide the most appropriate care based on
their expertise and clinical judgement. Although, even the most diligent clinician may
encounter an unexpected issue that must be addressed at the time a procedure isfurnished. As currently implemented, the PPDR process requires a provider toaccept/receive a payment amount less than the charged amount for the unforeseen items
and services not included in the good faith estimate, even when such charges aresubstantiated by credible information. The failure of the PPDR process to recognize thebilled amount as the appropriate payment amount, when warranted unfairly
penalizes providers for the treatment of unforeseen medical circumstances.

The median payment amount should not be the standard applied under the patientprovider dispute resolution process

As noted above, HHS has implemented a methodology under the patient-provider dispute
resolution process that bases the payment amount on either the lesser of the billed chargeor the median payment for the same or similar service in the geographic area as re�lectedin an independent claims database, in certain circumstances.

HHS is of the view that the median payment amount is a reasonable payment amount. The
methodology used, according to HHS is the same as was established to calculate thequalifying payment amount (QPA), which HHS considers a fair market rate for an item orservice by group health plans and health insurance issuers offering group or individual
health insurance coverage. In the October 2021 interim �inal rule, HHS states that utilizing
the same methodology regarding median rates as applied to the QPA and payment amounts
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that may be applied in all instances in which the regulation refers to median rates. HHS also
believes this methodology sets additional guardrails to protect patients from “excessive”
medical bills, even in the event of unforeseen circumstances.
However, AAOMS believes the median payment rate for healthcare services in a geographic
area does not necessarily represent the market value of those services. Rather, the medianpayment rate re�lects the midpoint at which payments are distributed among providers ina speci�ic area. This is in�luenced by various factors including payer contracts, varied
reimbursement methodologies, negotiated rates and contract provisions, as well as
regulatory policies. Market value, on the other hand, represents the price that willingbuyers and sellers agree upon in an open and competitive market. It considers factors suchas supply and demand dynamics, the quality and uniqueness of services, provider
expertise, patient preferences and other market forces. While the median payment rate canprovide some insight into the prevailing reimbursement rates in an area, it does not
capture the full complexity of market dynamics.
Actual market value may vary based on factors such as provider reputation, patientvolume, service quality, geographic location and local competition. Further, payment rates
for healthcare services can be in�luenced by negotiations between payers and providers,
government regulations, fee schedules and other factors that may not align with market
forces. Therefore, using the median payment rate alone may not accurately re�lect themarket value of healthcare services in a geographic area. While AAOMS understands andappreciates the consumer protections established under the federal surprise billing
regulations, we generally disagree with HHS that the median payment rate asde�ined is re�lective of fair market pricing for healthcare items and services, nor thatit re�lects a reasonable payment amount.

Further, the equivalent standard that HHS has set across median payment rates assumes
that the established methodology yields a fair market, appropriate rate. However, inrelation to the QPA and its role in payment determinations under the federal independent
dispute resolution (IDR) process, this has been called into question. In response to district
court rulings in 2022 and 2023, CMS has revised certain regulatory provisions andguidance governing the federal IDR process, including clarifying that the QPA or the medianin-network amount may not be presumed as the appropriate out-of-network rate for items
and services covered by the No Surprises Act. Updating policy under the patient-provider
dispute resolution process to require payment be equal to the billed amount if thephysician provides credible information for medically necessary and unforeseen carewould be consistent with the changes made under the federal IDR process. As such, AAOMS
encourages HHS to consider updating the methodology for payment determinations
under the PPDR to align with the federal IDR process. Speci�ically, we ask that HHS
consider allowing the �inal payment amount for medically necessary services due tounforeseen circumstances to be equal to that of the total billed charges, whenwarranted.

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The credibility standard under the patient-provider dispute process is ambiguous

AAOMS wishes to note that the ambiguous de�inition of “credible” — for the purposes ofpayment determinations under the PPDR process — may prove challenging both forproviders and arbitrators as the utilization of the arbitration process continues to increase.
According to HHS, information is de�ined as credible if “upon critical analysis theinformation is worthy of belief and consists of trustworthy information.” Although it iscommon to require healthcare providers to justify treatment decisions within the scope of
medical necessity, AAOMS believes that additional guidance on what may be considered“credible information” when determining whether additional care or increased complexityof services are medically necessary and due to unforeseen circumstances may aid
providers in the submission of appropriate documentation under the PPDR process. As
such, AAOMS encourages HHS to consider issuing guidance to allow a determinationof the type of information that meets the credibility standard in relation to thepatient-provider dispute resolution process.
The de�inition of “substantially in excess” remains challenging

Under the requirements for the patient-provider dispute resolution process, a good faithestimate for an uninsured (or self-pay) patient is eligible for payment dispute resolution
when the total billed charges from a provider or facility are deemed substantially in excessof, or at least $400 more than, the expected charges included in the good faith estimate.

From a clinical standpoint, even a straightforward procedure or slight change in medicallynecessary care may exceed the $400 threshold. Further, unforeseen interventions that arewithin the scope of accepted patient care protocols could easily trigger a $400 increase intreatment costs. Absent a more appropriate threshold at which the dispute process may beinitiated, this could lead to the routine over-estimation of charges as a way of avoiding thepatient-provider dispute resolution process in its entirety. For example, providers may feelthey must include all potential clinical scenarios and associated treatments in the goodfaith estimate, even if they may be unlikely to occur. Such practices could have the reverse
effect on the perceived cost of care, limiting accessibility and ultimately delaying patientcare.

HHS has indicated that setting a higher dollar amount or using a percentage of total billedcharges as the threshold may create access issues for certain patients in utilizing thepatient-provider dispute resolution process. While we acknowledge that raising thethreshold to a higher dollar amount may create undue limitations, AAOMS believes thatusing a �lat $400 rate for the dispute threshold does not recognize the complex nature ofmany medical, dental and surgical items and services. Therefore, AAOMS encourages HHS
to reconsider what is de�ined as “substantially in excess” regarding the total billedcharges by a provider or facility in relation to the expected estimate of charges. Forexample, HHS may consider utilizing the greater of either $400 over the expectedcharges presented in the good faith estimate or a predetermined percentage of thetotal billed charges as the threshold to trigger the patient-provider disputeresolution process.
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Thank you for your consideration of these comments. Please contact Patricia Serpico,AAOMS Director of Health Policy, Quality & Reimbursement, with any questions at 800822-6637, ext. 4394 or pserpico@aaoms.org.
Sincerely,

Paul J. Schwartz, DMD
AAOMS President

Joshua E. Everts, DDS, MD, FACS
Chair, AAOMS Committee on Healthcare Policy, Coding & Reimbursement

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