Bipartisan Concerns with No Surprises Act Implementation
Opportunities to course correct
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Next week on Tuesday, September 19, we’ll have another chance to hear Congress members’ thoughts on the out-of-network rollercoaster ride known as the No Surprises Act. Any chance to see a bipartisan effort on display is worth highlighting.
Flawed *Implementation*
In March 2023, agitated legislators from both ends of the political spectrum grilled Secretary of the Department of Health and Human Services Xavier Becerra about a host of issues plaguing the implementation of the No Surprises Act. For those interested, I’ve included relevant video links from the hearings at the end of this post.1
This is a key distinction that easily gets lost in the conversation about the No Surprises Act. The frustration from many healthcare providers is largely not with the legislation itself. It’s the implementation.
The patient protections the NSA created are to be celebrated. Arbitration was the means of achieving this, by isolating financial consequences of arbitration decisions to only providers and payers. Patients are not responsible for additional payments when providers win in arbitration.2
However, if arbitration is to be the new platform for settling out-of-network issues and incentivizing in-network agreements, then it needs to:
Follow Congress’s instructions
Be functional
How’s that going?
Failures with #1 have complicated #2, as evidenced by the Texas Medical Association’s 4-0 record in court thus far. While some victories have centered on “procedural” violations by federal agencies (i.e. violating APA notice-and-comment), others such as TMA III were complete refutations of the actual rules they implemented.
A few quotes from Judge Kernodle in TMA III about the Departments’ QPA rules:
“the Departments may not ignore the plain requirements of the Act merely because insurers may be inconvenienced.”
“…none of these potential benefits permits the Departments to draft a rule that conflicts with the plain text of the governing statute.”
“bound by the text of the statute.”
And the arbitration process?
As a result of these court decisions, the rewriting of guidance and rules by the Departments has led to freezing the arbitration process multiple times (it’s been frozen 42 days as of today), disrupting the workflows of IDR entities, creating huge backlogs of unresolved disputes, and more.
And for my clients? While sporting an overwhelming win percentage in arbitration, they have experienced massive cash flow disruptions, difficulty getting paid following arbitration victories, excessive non-refundable fees, and lack of good faith attempts by payers to resolve claims in Open Negotiation.
On average, it takes around 8 months to finally receive fair reimbursement with an arbitration claim (as measured from the procedure date to the date when the payer pays the arbitration-specified amount). But that’s only for resolved disputes.
For one client in particular, thousands of claims from September 2022 and earlier remain in IDR limbo.
Signs of Hope?
I know my clients have valid, winning arguments in arbitration - that’s been proven. All I’m advocating for is a fair and cost-efficient process to present those arguments, as Congress intended.
This can be accomplished through common sense approaches to batching criteria, an administrative fee system that doesn’t render the process financially inaccessible, and QPA calculations that actually follow the legislation’s clear instructions. And would it be too much to ask for a confidence-inspiring audit of those QPAs?
With proposed rules at the OMB and more attention from legislators, let’s hope the No Surprises Act gets reset in the right direction.
Links to videos of Congress member questions about the No Surprises Act:
Rep. Burgess (R)
Though we have had to remind certain payers of this fact!