VIRGINIA

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The Virginia SBL became effective January 1, 2021. Sections 38.2-3445.01 through 38.2-3445.07 and 14 VAC 5-405-10 et seq. The relevant provisions of the Virginia law include:

• Reimbursement to be at “commercially reasonable amounts,” which is essentially UCR.
• If there is no resolution within a 30-day negotiation period that starts at the initial payment, either party can arbitrate within 10 days of expiration of the 30-day period.

According to CMS,

Virginia does not have an applicable All-Payer Model Agreement that would determine the out-of-network rate. Based on the survey response and CMS communications with Virginia State Corporation Commission (SCC) Bureau of Insurance staff, CMS understands that sections 38.2-3445.01 through 38.2-3445.07 and 14 VAC 5-405-10 et seq are specified state laws that will apply for purposes of determining the out-of-network rate with respect emergency services provided to an enrollee, or nonemergency services provided to an enrollee at an in-network facility if the nonemergency services involve surgical or ancillary services provided by an out-of-network provider furnished to individuals in fully insured managed care plans issued or delivered in Virginia, including grandfathered plans. The federal independent dispute resolution process under section 2799A-1(c) of the PHS Act and 45 CFR 149.510 will apply for purposes of determining the out-of-network rate with respect to any items and services furnished to individuals in an insured group health plan, or group or individual health insurance coverage in Virginia by nonparticipating providers and nonparticipating emergency facilities to which sections 38.2-3445.01 through 38.2-3445.07 and 14 VAC 5-405-10 et seq do not apply. The federal independent dispute resolution process under section 2799A-2(b) of the PHS Act and 45 CFR 149.520 will apply for purposes of determining the out-of-network rate with respect to services furnished to individuals in an insured group health plan, or group or individual health insurance coverage in Virginia by nonparticipating providers of air ambulance services. CMS will enforce the outcome of the federal independent dispute resolution process for cases in Virginia.

Letter from CMS to Governor of Virginia, dated December 21, 2021.