While the No Surprises Act (NSA) intends to end surprise medical billing, also known as balance billing, and protect patients from receiving high out-of-network charges in certain situations, there remain challenges with enforcement over rulings made through the Independent Dispute Resolution (IDR) process.

A new survey conducted by the Americans for Fair Health Care (AFHC) reveals allegations that payers, specifically large health insurers, are not complying with certain provisions set forth by the final rules of the NSA.

According to physician respondents, many payers, including insurance companies, are ignoring arbitrated rulings on the reimbursement amounts or failing to pay them in full. Physicians also cite expediting delays with this process and frustrations when attempting to collect on awards with little to no effect from enforcement, leaving them questioning if the NSA is functioning as intended in the fair and amicable interests of all involved.

Survey Findings

AFHC, a newly formed clinician advocacy group, surveyed more than 48,000 physicians in 45 states. Respondents overwhelmingly revealed that payers are not fully complying with arbitration decisions, such as not following through with reimbursing doctors in the awarded amounts in more than half of disputed cases.

According to AFHC’s survey, after the dispute resolution process:

• 33% of all claims paid were made in an incorrect amount
• 52% of arbitration-determined payment amounts weren’t paid at all
• 49% of claims that were paid were ultimately paid late

Another survey of emergency room doctors conducted in 2022 also found payers were ignoring or delaying dispute resolution claims.

• 91% of filed claims remain open and unadjudicated
• 6% of outstanding claims are 5+ months old from 127 health plans
• Payers are not participating In 30-Day open negotiation period and IDR process as expected by statute

Legal Challenges to the NSA

Legal arguments are being heard in U.S. Federal Courts throughout the country over the interpretation of certain NSA provisions by healthcare providers, insurers and patient advocacy groups that have varying interpretations of how the law should be applied in practice. In some cases, legal challenges are brought on the grounds that certain aspects infringe upon constitutional rights or legal principles.

According to Health Affairs, the plaintiffs in several NSA lawsuits challenge parts of an interim final rule to implement the IDR process. They challenge the rule’s requirement that IDR entities presume that the QPA is the appropriate out-of-network payment amount unless a party submits credible information that clearly demonstrates that the QPA is materially different from the appropriate out-of-network rate. This part of the rule, they argue, violates the Administrative Procedure Act and is beyond the scope of the agencies’ legal authority, inconsistent with the NSA, or arbitrary and capricious.

Physician groups claim that payers are rejecting the independent dispute resolution determinations as “unenforceable” and “not binding,” which has led to wider litigation in federal court. Furthermore, court arguments are showing how final rule language favors insurers in payment disputes and don’t address key IDA issues intended by a bipartisan Congress.

Payer Perspective

Payers claim the NSA has put a significant burden on patients due to doctors appealing a large volume of IDR billing decisions and requirements. And, while providers disapprove of basing out-of-network payment rates on the qualifying payment amount, payers and employers have defended the No Surprises Act policy in court.

AHIP, the Blue Cross Blue Shield Association (BCBSA), and a cohort of employers filed amicus briefs supporting HHS. Payers generally favor using the QPA to determine out-of-network payment rates in surprise billing disputes. According to AHIP, the provisions in the interim final rule that were vacated better served congressional intent because they anchored the IDR process to the QPA. Tying payment decisions to the QPA helps to maximize voluntary dispute resolution.

Concerning policy implications, these legal challenges highlight the difficulties of protecting patients and prioritizing affordable healthcare. With payers and providers holding opposing views, federal policymakers must reach a conclusion that benefits both sides and improves costs for patients as healthcare consumers. 

Value of Legal Advocacy in a Medical Billing Partnership

Patient advocacy groups could also potentially bring legal challenges if they believe that the law is not adequately protecting patients from surprise billing or if they perceive gaps in its implementation.