"Federal agencies thought there would be about 17,000 arbitration experiences last year," Work said. "Instead, 90,000 claims were disputed and they had a huge surprise of their own at the end of the day. Saying the portal and the regulators are overwhelmed is an understatement."

The high number of ineligible claims contributed to the bottleneck: Out of more than 41,000 disputes challenged for eligibility during that period, only 21,000 were closed. "You are seeing a huge number of claims going in, but very few were actually closed and a huge number were declared ineligible," he said.

Claims can be ruled ineligible for several reasons:

• "Some should be filed under various state surprise billing laws," Work said. "You are seeing a huge number from Texas, which has a surprise billing law. State law preempts federal law."
• "Another reason is that some are being filed even though they are Medicare-related," added Chris Condeluci, Washington counsel for SIAA. "We also hear that some payers are not even going through the process and going straight to the internal dispute resolution process. If you don't go through the process, your claim is ineligible."
• "If you are not following this process correctly, your claim becomes ineligible," he added. "What we're seeing is that we have a 30-day open-negotiation period, but some providers don't like that and are trying to fast-forward from Day 1 to Day 30."
• "There also are claims that are not eligible but that are finding holes in the system and making it through the process," Condeluci said. "The Center for Medicare and Medicaid Services hired more staff to assist federal arbiters to determine whether a dispute is eligible in the first place. That is an extra cost, which is why the administrative fee is going from $50 to $350." 

"There are just more disputes being run through the process than the federal government 

anticipated," he noted. "The increase in the arbitration fee should slow down many of the disputes that otherwise are going through, because $350 obviously is a much higher price tag than $50. That will have an impact, whether it was intended or not."

Work agreed, adding that, "On any given day, there are only 12 or 13 arbiters who are taking new claims, and they are overwhelmed. The question then is, if they are so overwhelmed, are they doing their job right or just trying to get through the stack? They may not be taking as much time as they probably should."

For now, however, all disputed claims are on hold. In a recent case, Condeluci said, the judge sided with providers by:

• Ruling against the credible information standard;
• Ruling against the direction that independent dispute resolution entities (IDREs) should not consider additional information that already was accounted for in the qualifying payment amount; and 
• Finding that if an IDRE relies on any of the non-qualifying payment amount factors, the IDRE is not required to explain in writing why it concluded that this information was not already reflected in the QPA. 

"This is pure judge shopping," Work said. "This judge is in Texas and used to be an attorney for a hospital system. This placed a nationwide injunction on arbitration; but if it continues, it will favor payment determination for providers. It's something we fought hard against both in Congress and in the rulemaking process."

On February 10, CMS instructed IDREs to hold all payment determinations until further guidance is issued. The ruling, which has a nationwide impact, has been appealed. In the meantime, stakeholders will continue to sort out the meaning and implications of health care transparency and how to make it work better for everyone.

"You have a small number of providers filing the vast majority of arbitration claims," Work said. "Ten companies alone are filing 75 percent of arbitration claims. They are overwhelming the system with the number of disputes going on right now. I think the number of claims will decrease in coming years, but I also think we are in for a bumpy road until then."