No Surprises Act Update

No Surprises Act Update

It has been more than two years since implementation of the NSA. The overall dynamics remain the same, with health plans acting with impunity even while providers win the overwhelming majority of IDR disputes. Federal regulatory enforcement of statutory NSA provisions remains lax. BSA Healthcare’s comments on a selection of NSA-related issues are as follows:

• Litigation: After winning four lawsuits filed by the Texas Medical Association against the federal government, the departments that issue NSA regulations have either made minor changes to the regulations or have ignored the directives of the judge. The government is appealing the TMA 3 lawsuit, which vacated the regulatory language pertaining to calculation of the QPA (Qualifying Payment Amount). Additionally, the government has announced their intention to minimize enforcement against health plans who are in breach of regulatory guidance.
• QPA Calculations: Provider groups have uniformly commented that initial payments are far below the amounts they were paid as out-of-network providers prior to the NSA. The statute calls for QPA calculations to be based on the median in-network rates in 2019. Possibly due to lack of federal enforcement, the QPA calculations appear far below what would be expected for a median in-network 2019 rate. Health plans continue the process of rarely publishing their calculated QPA rates in initial remittance advices.
• IDR results: Providers continue to win more than 70% of IDR disputes. Insurers continue to withhold payments to providers who have won an IDR dispute. Federal enforcement regarding non-payments has been non-existent.
• Patient Cost Sharing: Despite clear regulatory language that patient cost sharing be solely tied to the QPA, insurers are increasing patient cost sharing amounts after losing IDR disputes. Although the Departments have clearly stated that this is a violation of the NSA, no enforcement action has been taken and insurers have not changed their behavior.
• IDR Backlog: The amount of IDR disputes awaiting arbitration decisions continues to grow exponentially.
• Public Relations: The insurance industry continues to pour unlimited funds into bogus claims that physicians are acting in bad faith. Either via direct releases of inaccurate information or via institutional surrogates, insurers have waged an unrelenting campaign against physician fees. One of their favorite lines of attack is to compare physician fees to Medicare rates. Not mentioned in their propaganda is the fact that physician Medicare rates have not increased in 30 years. Certainly, their insurance premiums and executive pay are massively higher than they were in 1994.
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• Emergency Medicine Advocacy: EM organizations continue their bifurcated advocacy efforts both at the regulatory and political levels. Barring any unexpected change in regulatory oversight, meaningful reforms of NSA implementation almost certainly will require a Congressional mandate, a process that may take years.