December 08, 2021
ASA Urges Agencies to Fix Major Flaw in "No Surprises Act" Regulation
On December 6, ASA sent a second formal communication to Biden Administration officials that provided recommendations to ensure the No Surprises Act is implemented fairly and equitably. The letter was sent in response to the second Interim Final Rule (IFR) implementing the No Surprises Act, a bill passed in December 2020 as part of the Consolidated Appropriations Act of 2021 that aims to ensure surprise medical bills (SMBs) are eliminated and that health care payment disputes are handled fairly. The IFR, titled “Requirements Related to Surprise Billing; Part II,” was released in September 2021 as the last of three rules on the No Surprises Act. ASA addressed the recommendations to Secretary of Health and Human Services Xavier Becerra, Secretary of the Treasury Janet Yellen, and Secretary of Labor Marty Walsh, leaders of the federal agencies responsible for issuing regulations to implement this legislation.
A major focus of ASA’s comments was centered on correcting the weighting of the Independent Dispute Resolution (IDR) factors. ASA urged the relevant federal agencies to ensure that all factors are considered equally in IDR and that the Departments should convey the limitations of the QPA to IDR entities. Congress clearly intended for each factor to play a role in the arbiter’s decision when it stated that arbiters “shall consider” the QPA and “information on any circumstance” described in the statute as requested by the IDR entity or submitted by a party. Despite this directive, the Departments added new restrictions that severely limit the scope of what an arbiter can assess and rather designed an IDR process that heavily favors health insurance companies in payment disputes by directing the arbiter to give the highest priority to the insurer-calculated median in-network amount over other considerations and arguments presented by physicians.
ASA also recommended that, to ensure the law is implemented fairly, arbiters be selected based on their experience with physician payments in the applicable geographic region and not based on prior decisions. Furthermore, ASA urged the Departments to disapprove arbiter fees that exceed the fixed fee ranges to ensure that arbiter costs are reasonable and will not be used to dissuade smaller provider groups from seeking resolution.
In regard to anesthesia services specifically, ASA further urged the Departments to allow all disputed anesthesia services to be batched in one determination, regardless of the associated procedure. Unlike other specialties, payments for anesthesia procedures, whether cardio-thoracic or orthopedic, are based on the same conversion factor, and only the conversion factor is subject to dispute resolution; batching such claims in one determination will help promote system efficiencies.
Read ASA Comment Letter.
Visit ASA Surprise Billing Resources. (Members Only)