Nation’s Frontline Physicians Denounce Regulators’ Implementation of Key Rule in No Surprises Act

CHICAGO – Organizations representing over 140,000 physicians on the front lines of health care delivery strongly oppose the Biden administration’s giveaway to insurance companies in its rule to define the independent dispute resolution (IDR) process established in the No Surprises Act. The rule, released today, is clearly not in line with congressional intent and will lead to drastic cuts to payments for in-network and out-of-network (OON) physicians alike, jeopardizing access for millions of American patients.

The No Surprises Act, landmark legislation passed by Congress at the end of last year, bans balance billing for OON services starting in 2022 and sought to establish an impartial and balanced back-stop IDR process to ensure that clinicians and facilities are paid appropriately for the OON services they deliver. The administration’s decision to require that “a certified IDR entity must look first to the Qualifying Payment Amount (QPA)” fails Congress’ impartiality test and puts a thumb on the scale of health plan-physician negotiations. The QPA, which is calculated by the insurance companies without meaningful oversight or transparency, does not reflect actual payment rates and is certain to be manipulated in their favor. Physician practices, already stressed by the pandemic, will only be further weakened by the new power this rule gives to health insurance companies.

“Today’s rule does not follow the congressional intent in implementing the law,” said American Society of Anesthesiologists President Beverly K. Philip, M.D., FACA, FASA. “The impact will be more record profits for insurers, who are the real winners of this rule, not patients or the physicians who have put their lives on the line throughout this pandemic.”

Speaking for the American Association of Neurological Surgeons and Congress of Neurological Surgeons, John K. Ratliff, M.D., FAANS, said, “Congress enacted a thoughtful and balanced approach to protect patients from unanticipated medical bills for out-of-network care that also included a fair process for resolving billing disputes. Unfortunately, this rule undermines the law by prioritizing median in-network payment rates.”

“This rule violates the intent, if not the actual letter, of the No Surprises Act and shatters a rare bipartisan, industry-wide agreement for equitable provider-insurer dispute resolution. We look forward to working with other provider groups and CMS to bring regulatory implementation in line with what the new law actually calls for,” said Howard B. Fleishon, M.D., FACR, chair of the American College of Radiology Board of Chancellors.

“AAOS is deeply concerned about the rule’s misalignment with the legislation that Congress passed in 2020 after two years of thoughtful debate,” said American Association of Orthopaedic Surgeons Advocacy Council Chair Douglas Lundy, M.D., MBA, FAAOS. “Rather than taking a step forward to offer clarity and protections for resolving payment disputes, the rule may exacerbate many of the frustrations that patients and physicians have with surprise billing.”

Nothing in the No Surprises Act grants the agencies the authority to provide this benefit to health insurance companies. Instead, under the legislation, Congress specifically made sure that physicians and health plans could present any relevant information for consideration, and that the certified impartial IDR entity must equally consider many factors when resolving a payment dispute, including:

• Median in-network rates;
•  Provider training and quality of outcomes;
• Market share of parties;
• Patient acuity or complexity of services;
• Teaching status, case mix, and scope of services of the facility;
• Demonstrations of previous good faith efforts to negotiate in-network rates; and
• Prior contract history between the two parties over the previous four years.

There has been broad bipartisan agreement on Capitol Hill calling for regulators to follow congressional intent in writing the rule — and not tipping the scales in favor of one factor over others in the IDR process. Recently, U.S. Reps. Tom Suozzi (D-N.Y.) and Brad Wenstrup, DPM (R-Ohio), led a bipartisan letter to the administration signed by 97 U.S. House members reinforcing that no single factor — such as the median in-network rate — should carry more weight over the others, which would create an imbalance in the IDR framework. U.S. Sens. Maggie Hassan (D-N.H.) and Bill Cassidy, M.D. (R-La.) and U.S. Reps. Raul Ruiz, M.D. (D-Calif.) and Larry Bucshon, M.D. (R-Ind.) sent similar bipartisan letters. Furthermore, the joint committees of jurisdiction also released a fact sheet after the final text of the legislation was announced last December, which states clearly that “the arbitrator must equally consider many factors.”

ABOUT THE AMERICAN SOCIETY OF ANESTHESIOLOGISTS
Founded in 1905, the American Society of Anesthesiologists (ASA) is an educational, research and scientific society with more than 54,000 members organized to raise and maintain the standards of the medical practice of anesthesiology. ASA is committed to ensuring physician anesthesiologists evaluate and supervise the medical care of patients before, during and after surgery to provide the highest quality and safest care every patient deserves.

For more information on the field of anesthesiology, visit the American Society of Anesthesiologists online at asahq.org. To learn more about the role physician anesthesiologists play in ensuring patient safety, visit asahq.org/madeforthismoment. Like ASA on Facebook and follow ASALifeline on Twitter.

ABOUT THE AMERICAN ASSOCIATION OF NEUROLOGICAL SURGEONS
The American Association of Neurological Surgeons (AANS), founded in 1931, and the Congress of Neurological Surgeons (CNS), founded in 1951, are the two largest scientific and educational associations for neurosurgical professionals in the world. These groups represent over 8,000 neurosurgeons worldwide. Neurological surgery is the medical specialty concerned with the prevention, diagnosis, treatment and rehabilitation of disorders that affect the entire nervous system, including the spinal column, spinal cord, brain and peripheral nerves. For more information, please visit www.aans.org or www.cns.org, read our blog www.neurosurgeryblog.org, and follow us on Twitter @neurosurgery.

ABOUT THE AMERICAN COLLEGE OF RADIOLOGY
The American College of Radiology^® (ACR^®), founded in 1923, is a professional medical society composed of diagnostic radiologists, radiation oncologists, interventional radiologists, nuclear medicine physicians and medical physicists, dedicated to serving patients and society by empowering radiology professionals to advance the practice, science and professions of radiological care.

ABOUT THE AMERICAN ASSOCIATION OF ORTHOPAEDIC SURGEONS
The American Association of Orthopaedic Surgeons (AAOS) Office of Government Relations promotes and advocates the viewpoint of the orthopaedic community before federal and state legislative, regulatory, and executive agencies. Based in Washington, DC, with additional staff in the Academy’s headquarters in Rosemont, Illinois, the Office of Government Relations identifies, analyzes, and directs all health policy activities and initiatives to position the AAOS as the trusted leaders in advancing musculoskeletal health. For more information on all AAOS advocacy efforts, visit http://www.aaos.org/dc.

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