138 
‘‘(E) SUFFICIENT
NUMBER
OF
ENTI-
TIES.—The process described in subparagraph 
(A) shall ensure that a sufficient number of en-
tities are certified under this paragraph to en-
sure the timely and efficient provision of deter-
minations described in paragraph (2). 
‘‘(F) PROVISION OF INFORMATION.— 
‘‘(i) IN GENERAL.—An entity certified 
under this paragraph shall provide to the 
Secretary, in such manner as the Secretary 
may require and on a quarterly basis (as 
specified by the Secretary), such informa-
tion as the Secretary determines appro-
priate to assure compliance with the re-
quirements described in subparagraph (A) 
and to monitor and assess the determina-
tions made by such entity and to ensure 
the absence of bias in making such deter-
minations. Such information shall include 
information described in clause (ii) but 
shall not include individually identifiable 
health information. 
‘‘(ii) 
INFORMATION
TO
BE
IN-
CLUDED.—The information described in 
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this clause with respect to an entity is the 
following: 
‘‘(I) The number of payment de-
terminations described in paragraph 
(2) 
made 
by 
such 
entity, 
disaggregated by— 
‘‘(aa) the line of business 
(as 
specified 
in 
subsection 
(k)(8)(C)) of the health plans 
party to such determinations; 
and 
‘‘(bb) the type of providers 
and facilities party to such deter-
minations. 
‘‘(II) A description of each item 
or service included in each such deter-
mination. 
‘‘(III) The amount of each offer 
submitted to the entity for each such 
determination. 
‘‘(IV) The amount of each such 
determination. 
‘‘(V) The length of time in mak-
ing each such determination. 
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‘‘(VI) The compensation paid to 
such entity with respect to each such 
determination. 
‘‘(VII) Any other information 
specified by the Secretary. 
‘‘(8) ADMINISTRATIVE FEE.— 
‘‘(A) IN GENERAL.—Each party to a deter-
mination to which an entity is selected under 
paragraph (3) in a year shall pay to the Sec-
retary, at such time and in such manner as 
specified by the Secretary, a fee for partici-
pating in the mediated dispute process with re-
spect to such determination in an amount de-
scribed in subparagraph (B) for such year. 
‘‘(B) AMOUNT OF FEE.—The amount de-
scribed in this subparagraph for a year is an 
amount established by the Secretary in a man-
ner such that the total amount of fees paid 
under this paragraph for such year is estimated 
to be equal to the amount of expenditures esti-
mated to be made by the Secretary for such 
year in carrying out the mediated dispute proc-
ess. 
‘‘(9) SECRETARIAL REPORT; PUBLICATION OF 
INFORMATION.— 
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141 
‘‘(A) SECRETARIAL
REPORT.—Beginning 
not later than July 1, 2023, the Secretary shall, 
in coordination with the Secretary of the Treas-
ury and the Secretary of Labor, periodically 
study and submit to Congress a report on— 
‘‘(i) the extent to which the payment 
amount determined under this subsection 
for an item or service furnished in a year 
(or otherwise agreed to by a health plan 
and provider or facility for purposes of de-
termining payment by the plan to the pro-
vider or facility pursuant to subsection 
(b)(1), (e)(1), or (i)(1)) differs from the 
median contracted rate for such item or 
service and year, including the number of 
times such determined (or agreed to) 
amount exceeds such median contracted 
rate; and 
‘‘(ii) the effect of such difference on 
the cost-sharing for such item or service 
for a participant, beneficiary, or enrollee of 
a health plan. 
‘‘(B) PUBLICATION
OF
INFORMATION.— 
Beginning with July 1, 2023, and for each cal-
endar quarter thereafter, the Secretary shall, in 
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coordination with the Secretary of the Treasury 
and the Secretary of Labor, make publicly 
available a summary of the following: 
‘‘(i) The information described in sub-
clauses (I) through (V) of clause (ii) of 
paragraph (7)(F) that was submitted to 
the Secretary under clause (i) of such 
paragraph during such quarter. 
‘‘(ii) The amount of expenditures 
made by the Secretary during such year to 
carry out the mediated dispute process. 
‘‘(iii) The total amount of fees paid 
under paragraph (8) during such quarter. 
‘‘(iv) The total amount of compensa-
tion paid to selected independent entities 
under paragraph (6) during such quar-
ter.’’. 
(b) IRC AMENDMENTS.—Section 9816 of the Inter-
nal Revenue Code of 1986, as added by section 2(b) and 
amended by sections 3(b), 5(b), and 6(b), is further 
amended by inserting before subsection (k) the following 
new subsection: 
‘‘(j) DETERMINATION OF OUT-OF-NETWORK RATES 
TO BE PAID BY HEALTH PLANS.— 
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143 
‘‘(1) DETERMINATION THROUGH OPEN NEGO-
TIATION.— 
‘‘(A) IN
GENERAL.—With respect to an 
item or service furnished in a year by a non-
participating provider or a nonparticipating fa-
cility, with respect to a health plan, in a State 
described in subparagraph (B) of subsection 
(k)(11) with respect to such plan and provider 
or facility, and for which a payment is required 
to be made by the health plan pursuant to sub-
section (b)(1), (e)(1), or (i)(1), the provider or 
facility (as applicable) or plan may, during the 
30-day period beginning on the day the provider 
or facility receives a response from the plan re-
garding a claim for payment for such item or 
service, initiate open negotiations under this 
paragraph between such provider or facility and 
plan for purposes of determining, during the 
open negotiation period, an amount agreed on 
by such provider or facility, respectively, and 
such plan for payment (including any cost-shar-
ing) for such item or service. For purposes of 
this subsection, the open negotiation period, 
with respect to an item or service, is the 30-day 
period beginning on the date of initiation of the 
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negotiations with respect to such item or serv-
ice. 
‘‘(B) EXCHANGE
OF
INFORMATION.—In 
carrying out negotiations initiated under sub-
paragraph (A), with respect to an item or serv-
ice described in such subparagraph furnished in 
a year, not later than the fifth business day of 
the open negotiation period described in such 
subparagraph with respect to such item or serv-
ice— 
‘‘(i) the health plan that is party to 
such negotiations shall notify the provider 
or facility that is party to such negotia-
tions of the median contracted rate for 
such item or service and year; and 
‘‘(ii) such provider or facility shall no-
tify such health plan of— 
‘‘(I) the median of the total 
amount of reimbursement (including 
any cost-sharing) paid, for the most 
recent year for which information is 
available, to such provider or facility 
for furnishing such item or service to 
a participant or beneficiary of a 
health plan that, at the time such 
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item or service was furnished, had a 
contract in effect with such provider 
or facility with respect to the fur-
nishing of such item or service; 
‘‘(II) in the case that information 
described in subclause (I) is not avail-
able, such information as specified by 
the Secretary; and 
‘‘(III) any additional information 
specified by the Secretary. 
‘‘(C) 
ACCESSING
MEDIATED
DISPUTE 
PROCESS IN CASE OF FAILED NEGOTIATIONS.— 
In the case of open negotiations pursuant to 
subparagraph (A), with respect to an item or 
service, that do not result in a determination of 
an amount of payment for such item or service 
by the last day of the open negotiation period 
described in such subparagraph with respect to 
such item or service, the provider or facility (as 
applicable) or health plan that was party to 
such negotiations may, during the 2-day period 
beginning on the day after such open negotia-
tion period, initiate the mediated dispute proc-
ess under paragraph (2) with respect to such 
item or service. The mediated dispute process 
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shall be initiated by a party pursuant to the 
previous sentence by submission to the other 
party and to the Secretary of a notification 
(containing such information as specified by the 
Secretary) and for purposes of this subsection, 
the date of initiation of such process shall be 
the date of such submission or such other date 
specified by the Secretary pursuant to regula-
tions that is not later than the date of receipt 
of such notification by both the other party and 
the Secretary. 
‘‘(2) MEDIATED DISPUTE PROCESS AVAILABLE 
IN CASE OF FAILED OPEN NEGOTIATIONS.— 
‘‘(A) ESTABLISHMENT.—Not later than 
July 1, 2021, the Secretary, in coordination 
with the Secretary of Health and Human Serv-
ices and the Secretary of Labor, shall establish 
a process (in this subsection referred to as the 
‘mediated dispute process’) under which, in the 
case of an item or service with respect to which 
a provider or facility (as applicable) or health 
plan submits a notification under paragraph 
(1)(C) (in this subsection referred to as a 
‘qualified mediated dispute item or service’), an 
entity selected under paragraph (3) determines, 
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subject to subparagraph (B) and in accordance 
with the succeeding provisions of this sub-
section, the amount of payment under the 
health plan for such item or service furnished 
by such provider or facility. 
‘‘(B) AUTHORITY TO CONTINUE NEGOTIA-
TIONS.—Under the mediated dispute process, in 
the case that the parties to a determination for 
a qualified mediated dispute item or service 
agree on a payment amount for such item or 
service during such process but before the date 
on which the entity selected with respect to 
such determination under paragraph (3) makes 
such determination, such amount shall be treat-
ed for purposes of subsection (k)(11)(B) as the 
amount agreed to by such parties for such item 
or service. In the case of an agreement de-
scribed in the previous sentence, the mediated 
dispute process shall provide for a method to 
determine how to allocate between the parties 
to such determination the payment of the com-
pensation of the entity selected with respect to 
such determination. 
‘‘(3) SELECTION
UNDER
MEDIATED
DISPUTE 
PROCESS.—Under the mediated dispute process, the 
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Secretary shall, with respect to the determination of 
the amount of payment under this subsection of a 
qualified mediated dispute item or service, provide 
for a method— 
‘‘(A) that allows the parties to such deter-
mination to jointly select, not later than the last 
day of the 3-day period following the date of 
the initiation of the process with respect to such 
item or service, for purposes of making such de-
termination, an entity certified under paragraph 
(7) that— 
‘‘(i) is not a party to such determina-
tion or an employee or agent of such a 
party; 
‘‘(ii) does not have a material familial, 
financial, or professional relationship with 
such a party; and 
‘‘(iii) does not otherwise have a con-
flict of interest with such a party (as de-
termined by the Secretary); and 
‘‘(B) that requires, in the case such parties 
do not make such selection by such last day, 
the Secretary to, not later than 6 days after 
such date of initiation— 
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‘‘(i) select such an entity that satisfies 
clauses (i) through (iii) of subparagraph 
(A); and 
‘‘(ii) provide notification of such selec-
tion to the provider or facility (as applica-
ble) and the health plan party to such de-
termination. 
An entity selected pursuant to the previous sentence 
to make a determination described in such sentence 
shall be referred to in this subsection as the ‘selected 
independent entity’ with respect to such determina-
tion. 
‘‘(4) TREATMENT OF CONSIDERATION OF MUL-
TIPLE ITEMS AND SERVICES.— 
‘‘(A) IN GENERAL.—Under the mediated 
dispute process, the Secretary shall specify cri-
teria under which multiple qualified mediated 
dispute items and services are permitted to be 
considered jointly as part of a single determina-
tion by an entity for purposes of encouraging 
the efficiency (including minimizing costs) of 
the mediated dispute process. Such items and 
services may be so considered only if— 
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‘‘(i) such items and services to be in-
cluded in such determination are furnished 
by the same provider or facility; 
‘‘(ii) payment for such items and serv-
ices is required to be made by the same 
health plan; and 
‘‘(iii) such items and services are re-
lated to the treatment of a similar condi-
tion. 
‘‘(B) TREATMENT
OF
BUNDLED
PAY-
MENTS.—In carrying out subparagraph (A), the 
Secretary shall provide that, in the case of 
items and services which are included by a pro-
vider or facility as part of a bundled payment, 
such items and services included in such bun-
dled payment may be part of a single deter-
mination under this subsection. 
‘‘(C) WAIVER OF DEADLINES.—For pur-
poses of permitting joint consideration of quali-
fied mediated dispute items and services as part 
of a single determination under the criteria 
specified pursuant to subparagraph (A), the 
Secretary may waive any deadline specified in 
this subsection. 
‘‘(5) DETERMINATION OF PAYMENT AMOUNT.— 
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‘‘(A) IN
GENERAL.—Not later than 30 
days after the date of initiation of the mediated 
dispute resolution, with respect to a qualified 
mediated dispute item or service, the selected 
independent entity with respect to a determina-
tion under this subsection for such item or serv-
ice shall— 
‘‘(i) taking into account only the con-
siderations 
specified 
in 
subparagraph 
(C)(i), select one of the offers submitted 
under subparagraph (B) to be the amount 
of payment for such item or service deter-
mined under this subsection for purposes 
of subsection (b)(1), (e)(1), or (i)(1), as 
applicable; and 
‘‘(ii) notify the provider or facility and 
the health plan party to such determina-
tion of the offer selected under clause (i). 
‘‘(B) SUBMISSION OF OFFERS.—Not later 
than 10 days after the date of initiation of the 
mediated dispute resolution with respect to a 
determination for a qualified mediated dispute 
item or service, the provider or facility and the 
health plan party to such determination shall 
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each submit to the selected independent enti-
ty— 
‘‘(i) an offer for a payment amount 
under for such item or service furnished by 
such provider or facility; 
‘‘(ii) information relating to such 
offer; and 
‘‘(iii) such other information as re-
quested by the selected independent entity. 
‘‘(C) CONSIDERATIONS.— 
‘‘(i) IN
GENERAL.—For purposes of 
subparagraph (A), the considerations spec-
ified in this subparagraph, with respect to 
a determination for a qualified mediated 
dispute item or service, are the following: 
‘‘(I) The median contracted rate 
for such item or service. 
‘‘(II) Subject to clause (ii), infor-
mation that is submitted pursuant to 
subparagraph (B). 
‘‘(ii) TREATMENT OF CERTAIN CON-
SIDERATIONS.—In making a determination 
with respect to a qualified mediated dis-
pute item or service pursuant to subpara-
graph (A)(i), a selected independent entity 
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may not take into account usual and cus-
tomary charges for the item or service nor 
charges billed by the provider or facility for 
the item or service. 
‘‘(6) SELECTED
INDEPENDENT
ENTITY
COM-
PENSATION.— 
‘‘(A) IN GENERAL.—Not later than 5 days 
after receiving a notification described in para-
graph (5)(A)(ii) from a selected independent 
entity with respect to the determination of a 
payment amount for a qualified mediated dis-
pute item or service, the party to such deter-
mination whose offer submitted under para-
graph (5)(B) was not selected by the entity 
shall pay to such entity a fee in compensation 
for the services of such entity in accordance 
with the guidelines on such compensation estab-
lished by the Secretary under subparagraph 
(B). 
‘‘(B) GUIDELINES
ON
COMPENSATION.— 
For purposes of subparagraph (A), the Sec-
retary shall establish guidelines with respect to 
the compensation of a selected independent en-
tity for the services of such entity with respect 
to determinations under the mediated dispute 
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process. Such guidelines shall provide that such 
compensation reimburses the entity for at least 
the costs of such entity in performing the duties 
of the entity under the mediated dispute proc-
ess. 
‘‘(7) CERTIFICATION OF ENTITIES.— 
‘‘(A) IN
GENERAL.—The Secretary shall 
establish or recognize a process to certify (in-
cluding recertification of) entities under this 
paragraph. Such process shall ensure that an 
entity so certified— 
‘‘(i) has (directly or through contracts 
or other arrangements) sufficient medical, 
legal, and other expertise and sufficient 
staffing to make determinations described 
in paragraph (2) on a timely basis; 
‘‘(ii) is not— 
‘‘(I) a health plan, provider, or 
facility; 
‘‘(II) an affiliate or a subsidiary 
of a health plan, provider, or facility; 
or 
‘‘(III) an affiliate or subsidiary of 
a professional or trade association of 
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health plans or of providers or facili-
ties; 
‘‘(iii) carries out the responsibilities of 
such an entity in accordance with this sub-
section; 
‘‘(iv) meets appropriate indicators of 
fiscal integrity; 
‘‘(v) maintains the confidentiality (in 
accordance with regulations promulgated 
by the Secretary) of individually identifi-
able health information obtained in the 
course of conducting such determinations; 
‘‘(vi) does not under the mediated dis-
pute process carry out any determination 
with respect to which the entity would not 
pursuant to clause (i), (ii), or (iii) of para-
graph (3)(A) be eligible for selection; and 
‘‘(vii) meets such other requirements 
as determined appropriate by the Sec-
retary. 
‘‘(B) PERIOD OF CERTIFICATION.—Subject 
to subparagraph (C), each certification (includ-
ing a recertification) of an entity under the 
process described in subparagraph (A) shall be 
for a 5-year period. 
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‘‘(C) REVOCATION.—A certification of an 
entity under this paragraph may be revoked 
under the process described in subparagraph 
(A) if the entity has a pattern or practice of 
noncompliance with any of the requirements de-
scribed in such subparagraph. 
‘‘(D) PETITION
FOR
DENIAL
OR
WITH-
DRAWAL.—The process described in subpara-
graph (A) shall ensure that an individual, pro-
vider, facility, or health plan may petition for a 
denial of a certification or a revocation of a cer-
tification with respect to an entity under this 
paragraph for failure of meeting a requirement 
of this subsection. 
‘‘(E) SUFFICIENT
NUMBER
OF
ENTI-
TIES.—The process described in subparagraph 
(A) shall ensure that a sufficient number of en-
tities are certified under this paragraph to en-
sure the timely and efficient provision of deter-
minations described in paragraph (2). 
‘‘(F) PROVISION OF INFORMATION.— 
‘‘(i) IN GENERAL.—An entity certified 
under this paragraph shall provide to the 
Secretary, in such manner as the Secretary 
may require and on a quarterly basis (as 
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specified by the Secretary), such informa-
tion as the Secretary determines appro-
priate to assure compliance with the re-
quirements described in subparagraph (A) 
and to monitor and assess the determina-
tions made by such entity and to ensure 
the absence of bias in making such deter-
minations. Such information shall include 
information described in clause (ii) but 
shall not include individually identifiable 
health information. 
‘‘(ii) 
INFORMATION
TO
BE
IN-
CLUDED.—The information described in 
this clause with respect to an entity is the 
following: 
‘‘(I) The number of payment de-
terminations described in paragraph 
(2) 
made 
by 
such 
entity, 
disaggregated by— 
‘‘(aa) the line of business 
(as 
specified 
in 
subsection 
(k)(8)(C)) of the health plans 
party to such determinations; 
and 
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‘‘(bb) the type of providers 
and facilities party to such deter-
minations. 
‘‘(II) A description of each item 
or service included in each such deter-
mination. 
‘‘(III) The amount of each offer 
submitted to the entity for each such 
determination. 
‘‘(IV) The amount of each such 
determination. 
‘‘(V) The length of time in mak-
ing each such determination. 
‘‘(VI) The compensation paid to 
such entity with respect to each such 
determination. 
‘‘(VII) Any other information 
specified by the Secretary. 
‘‘(8) ADMINISTRATIVE FEE.— 
‘‘(A) IN GENERAL.—Each party to a deter-
mination to which an entity is selected under 
paragraph (3) in a year shall pay to the Sec-
retary, at such time and in such manner as 
specified by the Secretary, a fee for partici-
pating in the mediated dispute process with re-
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spect to such determination in an amount de-
scribed in subparagraph (B) for such year. 
‘‘(B) AMOUNT OF FEE.—The amount de-
scribed in this subparagraph for a year is an 
amount established by the Secretary in a man-
ner such that the total amount of fees paid 
under this paragraph for such year is estimated 
to be equal to the amount of expenditures esti-
mated to be made by the Secretary for such 
year in carrying out the mediated dispute proc-
ess. 
‘‘(9) SECRETARIAL REPORT; PUBLICATION OF 
INFORMATION.— 
‘‘(A) SECRETARIAL
REPORT.—Beginning 
not later than July 1, 2023, the Secretary shall, 
in coordination with the Secretary of Health 
and Human Services and the Secretary of 
Labor, periodically study and submit to Con-
gress a report on— 
‘‘(i) the extent to which the payment 
amount determined under this subsection 
for an item or service furnished in a year 
(or otherwise agreed to by a health plan 
and provider or facility for purposes of de-
termining payment by the plan to the pro-
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vider or facility pursuant to subsection 
(b)(1), (e)(1), or (i)(1)) differs from the 
median contracted rate for such item or 
service and year, including the number of 
times such determined (or agreed to) 
amount exceeds such median contracted 
rate; and 
‘‘(ii) the effect of such difference on 
the cost-sharing for such item or service 
for a participant or beneficiary of a health 
plan. 
‘‘(B) PUBLICATION
OF
INFORMATION.— 
Beginning with July 1, 2023, and for each cal-
endar quarter thereafter, the Secretary shall, in 
coordination with the Secretary of Health and 
Human Services and the Secretary of Labor, 
make publicly available a summary of the fol-
lowing: 
‘‘(i) The information described in sub-
clauses (I) through (V) of clause (ii) of 
paragraph (7)(F) that was submitted to 
the Secretary under clause (i) of such 
paragraph during such quarter. 
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‘‘(ii) The amount of expenditures 
made by the Secretary during such year to 
carry out the mediated dispute process. 
‘‘(iii) The total amount of fees paid 
under paragraph (8) during such quarter. 
‘‘(iv) The total amount of compensa-
tion paid to selected independent entities 
under paragraph (6) during such quar-
ter.’’. 
(c) ERISA AMENDMENTS.—Section 716 of the Em-
ployee Retirement Income Security Act of 1974, as added 
by section 2(c) and amended by sections 3(c), 5(c), and 
6(c), is further amended by inserting before subsection (k) 
the following new subsection: 
‘‘(j) DETERMINATION OF OUT-OF-NETWORK RATES 
TO BE PAID BY HEALTH PLANS.— 
‘‘(1) DETERMINATION THROUGH OPEN NEGO-
TIATION.— 
‘‘(A) IN
GENERAL.—With respect to an 
item or service furnished in a year by a non-
participating provider or a nonparticipating fa-
cility, with respect to a health plan, in a State 
described in subparagraph (B) of subsection 
(k)(11) with respect to such plan and provider 
or facility, and for which a payment is required 
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to be made by the health plan pursuant to sub-
section (b)(1), (e)(1), or (i)(1), the provider or 
facility (as applicable) or plan may, during the 
30-day period beginning on the day the provider 
or facility receives a response from the plan re-
garding a claim for payment for such item or 
service, initiate open negotiations under this 
paragraph between such provider or facility and 
plan for purposes of determining, during the 
open negotiation period, an amount agreed on 
by such provider or facility, respectively, and 
such plan for payment (including any cost-shar-
ing) for such item or service. For purposes of 
this subsection, the open negotiation period, 
with respect to an item or service, is the 30-day 
period beginning on the date of initiation of the 
negotiations with respect to such item or serv-
ice. 
‘‘(B) EXCHANGE
OF
INFORMATION.—In 
carrying out negotiations initiated under sub-
paragraph (A), with respect to an item or serv-
ice described in such subparagraph furnished in 
a year, not later than the fifth business day of 
the open negotiation period described in such 
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subparagraph with respect to such item or serv-
ice— 
‘‘(i) the health plan that is party to 
such negotiations shall notify the provider 
or facility that is party to such negotia-
tions of the median contracted rate for 
such item or service and year; and 
‘‘(ii) such provider or facility shall no-
tify such health plan of— 
‘‘(I) the median of the total 
amount of reimbursement (including 
any cost-sharing) paid, for the most 
recent year for which information is 
available, to such provider or facility 
for furnishing such item or service to 
a participant or beneficiary of a 
health plan that, at the time such 
item or service was furnished, had a 
contract in effect with such provider 
or facility with respect to the fur-
nishing of such item or service; 
‘‘(II) in the case that information 
described in subclause (I) is not avail-
able, such information as specified by 
the Secretary; and 
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‘‘(III) any additional information 
specified by the Secretary. 
‘‘(C) 
ACCESSING
MEDIATED
DISPUTE 
PROCESS IN CASE OF FAILED NEGOTIATIONS.— 
In the case of open negotiations pursuant to 
subparagraph (A), with respect to an item or 
service, that do not result in a determination of 
an amount of payment for such item or service 
by the last day of the open negotiation period 
described in such subparagraph with respect to 
such item or service, the provider or facility (as 
applicable) or health plan that was party to 
such negotiations may, during the 2-day period 
beginning on the day after such open negotia-
tion period, initiate the mediated dispute proc-
ess under paragraph (2) with respect to such 
item or service. The mediated dispute process 
shall be initiated by a party pursuant to the 
previous sentence by submission to the other 
party and to the Secretary of a notification 
(containing such information as specified by the 
Secretary) and for purposes of this subsection, 
the date of initiation of such process shall be 
the date of such submission or such other date 
specified by the Secretary pursuant to regula-
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165 
tions that is not later than the date of receipt 
of such notification by both the other party and 
the Secretary. 
‘‘(2) MEDIATED DISPUTE PROCESS AVAILABLE 
IN CASE OF FAILED OPEN NEGOTIATIONS.— 
‘‘(A) ESTABLISHMENT.—Not later than 
July 1, 2021, the Secretary, in coordination 
with the Secretary of Health and Human Serv-
ices and the Secretary of the Treasury, shall es-
tablish a process (in this subsection referred to 
as the ‘mediated dispute process’) under which, 
in the case of an item or service with respect 
to which a provider or facility (as applicable) or 
health plan submits a notification under para-
graph (1)(C) (in this subsection referred to as 
a ‘qualified mediated dispute item or service’), 
an entity selected under paragraph (3) deter-
mines, subject to subparagraph (B) and in ac-
cordance with the succeeding provisions of this 
subsection, the amount of payment under the 
health plan for such item or service furnished 
by such provider or facility. 
‘‘(B) AUTHORITY TO CONTINUE NEGOTIA-
TIONS.—Under the mediated dispute process, in 
the case that the parties to a determination for 
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a qualified mediated dispute item or service 
agree on a payment amount for such item or 
service during such process but before the date 
on which the entity selected with respect to 
such determination under paragraph (3) makes 
such determination, such amount shall be treat-
ed for purposes of subsection (k)(11)(B) as the 
amount agreed to by such parties for such item 
or service. In the case of an agreement de-
scribed in the previous sentence, the mediated 
dispute process shall provide for a method to 
determine how to allocate between the parties 
to such determination the payment of the com-
pensation of the entity selected with respect to 
such determination. 
‘‘(3) SELECTION
UNDER
MEDIATED
DISPUTE 
PROCESS.—Under the mediated dispute process, the 
Secretary shall, with respect to the determination of 
the amount of payment under this subsection of a 
qualified mediated dispute item or service, provide 
for a method— 
‘‘(A) that allows the parties to such deter-
mination to jointly select, not later than the last 
day of the 3-day period following the date of 
the initiation of the process with respect to such 
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item or service, for purposes of making such de-
termination, an entity certified under paragraph 
(7) that— 
‘‘(i) is not a party to such determina-
tion or an employee or agent of such a 
party; 
‘‘(ii) does not have a material familial, 
financial, or professional relationship with 
such a party; and 
‘‘(iii) does not otherwise have a con-
flict of interest with such a party (as de-
termined by the Secretary); and 
‘‘(B) that requires, in the case such parties 
do not make such selection by such last day, 
the Secretary to, not later than 6 days after 
such date of initiation— 
‘‘(i) select such an entity that satisfies 
clauses (i) through (iii) of subparagraph 
(A); and 
‘‘(ii) provide notification of such selec-
tion to the provider or facility (as applica-
ble) and the health plan party to such de-
termination. 
An entity selected pursuant to the previous sentence 
to make a determination described in such sentence 
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shall be referred to in this subsection as the ‘selected 
independent entity’ with respect to such determina-
tion. 
‘‘(4) TREATMENT OF CONSIDERATION OF MUL-
TIPLE ITEMS AND SERVICES.— 
‘‘(A) IN GENERAL.—Under the mediated 
dispute process, the Secretary shall specify cri-
teria under which multiple qualified mediated 
dispute items and services are permitted to be 
considered jointly as part of a single determina-
tion by an entity for purposes of encouraging 
the efficiency (including minimizing costs) of 
the mediated dispute process. Such items and 
services may be so considered only if— 
‘‘(i) such items and services to be in-
cluded in such determination are furnished 
by the same provider or facility; 
‘‘(ii) payment for such items and serv-
ices is required to be made by the same 
health plan; and 
‘‘(iii) such items and services are re-
lated to the treatment of a similar condi-
tion. 
‘‘(B) TREATMENT
OF
BUNDLED
PAY-
MENTS.—In carrying out subparagraph (A), the 
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Secretary shall provide that, in the case of 
items and services which are included by a pro-
vider or facility as part of a bundled payment, 
such items and services included in such bun-
dled payment may be part of a single deter-
mination under this subsection. 
‘‘(C) WAIVER OF DEADLINES.—For pur-
poses of permitting joint consideration of quali-
fied mediated dispute items and services as part 
of a single determination under the criteria 
specified pursuant to subparagraph (A), the 
Secretary may waive any deadline specified in 
this subsection. 
‘‘(5) DETERMINATION OF PAYMENT AMOUNT.— 
‘‘(A) IN
GENERAL.—Not later than 30 
days after the date of initiation of the mediated 
dispute resolution, with respect to a qualified 
mediated dispute item or service, the selected 
independent entity with respect to a determina-
tion under this subsection for such item or serv-
ice shall— 
‘‘(i) taking into account only the con-
siderations 
specified 
in 
subparagraph 
(C)(i), select one of the offers submitted 
under subparagraph (B) to be the amount 
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of payment for such item or service deter-
mined under this subsection for purposes 
of subsection (b)(1), (e)(1), or (i)(1), as 
applicable; and 
‘‘(ii) notify the provider or facility and 
the health plan party to such determina-
tion of the offer selected under clause (i). 
‘‘(B) SUBMISSION OF OFFERS.—Not later 
than 10 days after the date of initiation of the 
mediated dispute resolution with respect to a 
determination for a qualified mediated dispute 
item or service, the provider or facility and the 
health plan party to such determination shall 
each submit to the selected independent enti-
ty— 
‘‘(i) an offer for a payment amount 
under for such item or service furnished by 
such provider or facility; 
‘‘(ii) information relating to such 
offer; and 
‘‘(iii) such other information as re-
quested by the selected independent entity. 
‘‘(C) CONSIDERATIONS.— 
‘‘(i) IN
GENERAL.—For purposes of 
subparagraph (A), the considerations spec-
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ified in this subparagraph, with respect to 
a determination for a qualified mediated 
dispute item or service, are the following: 
‘‘(I) The median contracted rate 
for such item or service. 
‘‘(II) Subject to clause (ii), infor-
mation that is submitted pursuant to 
subparagraph (B). 
‘‘(ii) TREATMENT OF CERTAIN CON-
SIDERATIONS.—In making a determination 
with respect to a qualified mediated dis-
pute item or service pursuant to subpara-
graph (A)(i), a selected independent entity 
may not take into account usual and cus-
tomary charges for the item or service nor 
charges billed by the provider or facility for 
the item or service. 
‘‘(6) SELECTED
INDEPENDENT
ENTITY
COM-
PENSATION.— 
‘‘(A) IN GENERAL.—Not later than 5 days 
after receiving a notification described in para-
graph (5)(A)(ii) from a selected independent 
entity with respect to the determination of a 
payment amount for a qualified mediated dis-
pute item or service, the party to such deter-
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172 
mination whose offer submitted under para-
graph (5)(B) was not selected by the entity 
shall pay to such entity a fee in compensation 
for the services of such entity in accordance 
with the guidelines on such compensation estab-
lished by the Secretary under subparagraph 
(B). 
‘‘(B) GUIDELINES
ON
COMPENSATION.— 
For purposes of subparagraph (A), the Sec-
retary shall establish guidelines with respect to 
the compensation of a selected independent en-
tity for the services of such entity with respect 
to determinations under the mediated dispute 
process. Such guidelines shall provide that such 
compensation reimburses the entity for at least 
the costs of such entity in performing the duties 
of the entity under the mediated dispute proc-
ess. 
‘‘(7) CERTIFICATION OF ENTITIES.— 
‘‘(A) IN
GENERAL.—The Secretary shall 
establish or recognize a process to certify (in-
cluding recertification of) entities under this 
paragraph. Such process shall ensure that an 
entity so certified— 
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‘‘(i) has (directly or through contracts 
or other arrangements) sufficient medical, 
legal, and other expertise and sufficient 
staffing to make determinations described 
in paragraph (2) on a timely basis; 
‘‘(ii) is not— 
‘‘(I) a health plan, provider, or 
facility; 
‘‘(II) an affiliate or a subsidiary 
of a health plan, provider, or facility; 
or 
‘‘(III) an affiliate or subsidiary of 
a professional or trade association of 
health plans or of providers or facili-
ties; 
‘‘(iii) carries out the responsibilities of 
such an entity in accordance with this sub-
section; 
‘‘(iv) meets appropriate indicators of 
fiscal integrity; 
‘‘(v) maintains the confidentiality (in 
accordance with regulations promulgated 
by the Secretary) of individually identifi-
able health information obtained in the 
course of conducting such determinations; 
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‘‘(vi) does not under the mediated dis-
pute process carry out any determination 
with respect to which the entity would not 
pursuant to clause (i), (ii), or (iii) of para-
graph (3)(A) be eligible for selection; and 
‘‘(vii) meets such other requirements 
as determined appropriate by the Sec-
retary. 
‘‘(B) PERIOD OF CERTIFICATION.—Subject 
to subparagraph (C), each certification (includ-
ing a recertification) of an entity under the 
process described in subparagraph (A) shall be 
for a 5-year period. 
‘‘(C) REVOCATION.—A certification of an 
entity under this paragraph may be revoked 
under the process described in subparagraph 
(A) if the entity has a pattern or practice of 
noncompliance with any of the requirements de-
scribed in such subparagraph. 
‘‘(D) PETITION
FOR
DENIAL
OR
WITH-
DRAWAL.—The process described in subpara-
graph (A) shall ensure that an individual, pro-
vider, facility, or health plan may petition for a 
denial of a certification or a revocation of a cer-
tification with respect to an entity under this 
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paragraph for failure of meeting a requirement 
of this subsection. 
‘‘(E) SUFFICIENT
NUMBER
OF
ENTI-
TIES.—The process described in subparagraph 
(A) shall ensure that a sufficient number of en-
tities are certified under this paragraph to en-
sure the timely and efficient provision of deter-
minations described in paragraph (2). 
‘‘(F) PROVISION OF INFORMATION.— 
‘‘(i) IN GENERAL.—An entity certified 
under this paragraph shall provide to the 
Secretary, in such manner as the Secretary 
may require and on a quarterly basis (as 
specified by the Secretary), such informa-
tion as the Secretary determines appro-
priate to assure compliance with the re-
quirements described in subparagraph (A) 
and to monitor and assess the determina-
tions made by such entity and to ensure 
the absence of bias in making such deter-
minations. Such information shall include 
information described in clause (ii) but 
shall not include individually identifiable 
health information. 
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‘‘(ii) 
INFORMATION
TO
BE
IN-
CLUDED.—The information described in 
this clause with respect to an entity is the 
following: 
‘‘(I) The number of payment de-
terminations described in paragraph 
(2) 
made 
by 
such 
entity, 
disaggregated by— 
‘‘(aa) the line of business 
(as 
specified 
in 
subsection 
(k)(8)(C)) of the health plans 
party to such determinations; 
and 
‘‘(bb) the type of providers 
and facilities party to such deter-
minations. 
‘‘(II) A description of each item 
or service included in each such deter-
mination. 
‘‘(III) The amount of each offer 
submitted to the entity for each such 
determination. 
‘‘(IV) The amount of each such 
determination. 
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‘‘(V) The length of time in mak-
ing each such determination. 
‘‘(VI) The compensation paid to 
such entity with respect to each such 
determination. 
‘‘(VII) Any other information 
specified by the Secretary. 
‘‘(8) ADMINISTRATIVE FEE.— 
‘‘(A) IN GENERAL.—Each party to a deter-
mination to which an entity is selected under 
paragraph (3) in a year shall pay to the Sec-
retary, at such time and in such manner as 
specified by the Secretary, a fee for partici-
pating in the mediated dispute process with re-
spect to such determination in an amount de-
scribed in subparagraph (B) for such year. 
‘‘(B) AMOUNT OF FEE.—The amount de-
scribed in this subparagraph for a year is an 
amount established by the Secretary in a man-
ner such that the total amount of fees paid 
under this paragraph for such year is estimated 
to be equal to the amount of expenditures esti-
mated to be made by the Secretary for such 
year in carrying out the mediated dispute proc-
ess. 
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