Letter to Congress on No Surprises Act

December 15, 2020

Dear Speaker Pelosi and Minority Leader McCarthy,

On behalf of the over 54,000 members of the American Society of Anesthesiologists (ASA), I write to thank you for your leadership on the surprise medical bill issue. We are pleased to provide to you our comments on the draft legislative language of the “No Surprises Act.”

ASA is a membership organization of physician anesthesiologists and others involved in the medical specialty of anesthesiology, critical care, and pain medicine. ASA members practice in a variety of practice settings including small, medium, and large practices, as well as private and academic practices. Approximately 75% of ASA members work in small or medium sized practices or academic institutions.

ASA recognizes the role of hospital-based physicians, such as anesthesiologists, in surprise medical bills. Nonetheless, a 2019 Health Care Cost Institute (HCCI) analysis reported that over 90 percent of anesthesiologists’ claims are in-network. With in-network claims, patients receive no surprise medical bills. However, patients may be out of network for legitimate reasons that are beyond an anesthesiologist’s control. Because of this, ASA is committed to working for fair solutions that protect patients from surprise medical bills.

ASA has concerns regarding the hurried process Congress has undertaken to move this important proposal forward. The legislative language is complicated and has real world implications for physician practices throughout the country, many of which are still struggling as a result of the pandemic. In particular, the impact of the legislation on practices of all sizes, including small, medium and academic practices, may yet be fully understood.

Nevertheless, we commend lawmakers, the key committees, and the committee staff for their ongoing efforts to advance a balanced solution to surprise medical bills. In particular, we applaud the following provisions of the “No Surprises Act,” all of which were sought by ASA:

The “No Surprises Act” protects patients from surprise medical bills. The proposal provides that patients will only be responsible for their in-network cost-sharing amounts, including deductibles, when receiving medical care.
The proposal takes important steps to moderate the impact of non-marketplace, government-set rates by using the median in-network payment rate only as one consideration within the arbitration process.
The inclusion of an Independent Dispute Resolution (IDR) process will allow physicians to challenge unfair payments from health insurance companies. Importantly, this proposal improves physician access to the IDR process with the exclusion of a monetary threshold and the inclusion of “batching.” Further, the arbitration criterion takes important steps forward by ensuring that the process is fair and reflects the marketplace, by including consideration of previous contracting history among the factors the arbiter may consider.
The start of the IDR process is appropriately aligned with the implementation of the prohibition on surprise bills. This alignment will ensure that physicians have access to a mechanism to address inappropriate insurer payments that is concurrent with the prohibition on surprise bills.

These are important provisions that represent significant improvements over proposals previously introduced and discussed. However, other concerning provisions in the “No Surprises Act” could outweigh these laudable improvements.

As part of the IDR process, the arbiter is explicitly prohibited from considering charges in determining an appropriate payment. There is no similar prohibition on consideration of Medicare and Medicaid payment rates. Indeed, it has become evident that consideration of these government rates in the proposal is intended and expected. Medicare, Medicaid, and Worker’s Compensation rates are artificially derived payment rates with no connection to actual costs or market rates. These rates are not determined by fair negotiation between the parties. For anesthesiologists, these rates are unsustainably low. To ensure symmetry in the arbiter’s deliberations, we strongly support an explicit prohibition on the consideration of Medicare, Medicaid, and Worker’s Compensation rates.
ASA has concerns regarding the initial payment from the insurer to the physician. Ambiguity may permit the insurer to “game” the system and make unfairly low payments to force smaller anesthesiology practices to spend time and resources to utilize the IDR process more frequently than is necessary. We support language that would require the initial payment to be considered the insurer's binding offer in the IDR process, or would allow the arbiter to disfavor the insurer position in arbitration if an unfairly low initial payment is made.
There are several deadlines included in the “No Surprises Act” that require physician practices to make submissions to various stakeholders. As a result of the short timeline to review this proposal, it is unclear if physician practices, including smaller practices, will be able to meet these timelines. ASA believes these deadlines should be carefully considered to ensure that practices of all sizes and resources can reasonably meet them. Failure to set reasonable deadlines will harm the accuracy of claims and may compromise a practice’s ability to meet its legally required billing compliance mandates.
ASA applauds the inclusion of language permitting “batching” or bundling of similar claims for submission to the IDR process. However, there is ambiguity as to whether practices are permitted to bundle claims from multiple providers within one practice. To ensure efficiency, ASA encourages language explicitly permitting batching by one practice with multiple providers.
The savings generated from the “No Surprises Act” is reportedly $17-18 billion over 10 years. Although we have yet to have the opportunity to review a Congressional Budget Office (CBO) score of the proposal, the magnitude of these savings strongly suggests significant payment reductions to in-network physicians. ASA is concerned about commercial insurer payment reductions during a time when many anesthesiology practices are facing economic challenges due to the pandemic. The practices of frontline providers must be protected. We support the inclusion of mechanisms to moderate the magnitude of these payment cuts or to otherwise redirect these savings to frontline physicians and other providers, particularly those engaged in high-risk medical activities.
The 90 day “cooling-off” period would appear to limit the ability of a physician to access the arbitration process. We suspect that this may be particularly harmful for smaller anesthesiology practices. ASA supports eliminating the “cooling off period” or reducing the length of the period.
Section 108 includes language related to the ACA non-provider discrimination provisions. This issue has been long resolved. So-called “provider-discrimination,” is a controversial issue related to non-physicians seeking to expand their scope of practice. It is not related to surprise medical bills. ASA recommends striking this provision.

Thank you for the opportunity to share our thoughts. Please contact me at [email protected].

Sincerely,

Beverly K. Philip, MD, FACA, FASA
President, American Society of Anesthesiologists