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No Surprises Act has Unpleasant Surprises for Providers & Patients

The No Surprises Act is a bipartisan law to protect patients from high medical charges for unavoidable out-of-network care, while providing providers with fair payments. Its implementation suffers from insurer-tilted rules, another example of “regulatory capture”.

February 16, 2024

Is the No Surprises Act backfiring on patients? And why is HHS Secretary Becerra letting it happen?
Health Care Un-Covered
February 14, 2024
Wendell Potter

[O]ne area of real compromise, and policy achievement, in recent years came in December 2020 with the passage of the No Surprises Act (NSA).

For a decade, patients had seen an increase in “surprise bills” that were generated after an emergency room visit or some hospital-based procedures. In many cases, after a doctor provided emergency or specialist care at a hospital to a patient whose insurance was not “in-network” with that doctor, the patient received a bill for the balance left unpaid by their insurer. Sometimes those bills were into the tens and hundreds of thousands of dollars, driving a surge in medical debt. 

The NSA took two years of intense deliberation by Congress and resulted in a significant bipartisan achievement for patients. It credibly addressed the problem in a way that was a compromise for insurers and doctors. It created a mechanism to set a reasonable, market-based rate for out-of-network medical procedures. As enacted by Congress, it seemed to be a fair means of resolving payment disputes between doctors and insurers, without patients in the middle. Consumers stopped receiving surprise bills and–even I believed–this was the rare problem in our health system that had been resolved fairly.

 

I was wrong. And to my surprise, the fault lies squarely at the feet of the Biden administration’s Department of Health and Human Services (HHS). The way the administration wrote the regulations, undoubtedly with “help” from my former colleagues, insurers scored a major advantage. In doing so a law that was meant to be a shield for patients has turned into a sword for insurers.

Since the act’s implementation in 2022, HEALTH CARE Un-covered has learned, in talking with doctors around the country, that insurers have abused their authority under the law. This gets technical, so bear with me.

The law created a new way to set the average cost of specific care in specific markets – called Qualified Payment Amounts (QPAs) – that is supposed to be the basis of patient cost-sharing. It’s also one of the factors in an arbitration process set up in the law when payers and providers can’t agree on out-of-network payment.

The problem is that the Biden Administration’s regulations empowered insurers to set the QPA amount and then made it a “rebuttable presumption” of payment in the arbitration–meaning the QPA as determined by the insurer is just assumed to be appropriate and fair–ignoring all other factors. … insurers have become the foxes guarding the hen house. …

Insurers are using the law to slash payments to doctors to boost profits.

[O]ver the past two years, the law has empowered insurers to terminate contracts and offer far lower payment rates in return. Here’s how it works: an insurer tells a group of emergency room doctors they will no longer pay $100 for a procedure. Instead, the insurer says it will pay $40. Outraged, the doctors decline, which triggers the arbitration rules set out under the NSA.

[Then, the QPA specified by insurers strongly tilts the arbitration their way.]

There is a mechanism in the law to ensure this doesn’t happen, and insurers have to provide a reasonable QPA to the arbiter, and the QPA is supposed to only be one of several factors considered as to what rate is reasonable. And that, unfortunately, is where the failure of HHS Secretary Xavier Becerra is laid bare. Despite multiple federal court rulings against insurers and in favor of hospital-based doctors, Becerra’s agency has refused to enforce the act to ensure fair payment rates to both sides.

Now, you might be thinking, why should I care? …

[T]here has been a worsening shortage of doctors in rural and underserved areas. Emergency room wait times are increasing, and specialists are becoming more difficult to schedule. The NSA, as written by Congress, would have stopped surprise billing by bad actors while stabilizing the health care system by creating an equal playing field for resolving out-of-network disputes between insurers and providers. …

Why did CMS feel the need to give insurers a pass on this critical piece of legislation?  Well, in its recent guidance, CMS was concerned that insurers would have “significant challenges associated with the recalculations” of the QPA and that it would “require significant resources and take many months if not longer.”  This comment has been met with utter disbelief from hospitals and doctors who are struggling with significant challenges …

As insurers are using HHS’ approach to enforcement to squeeze providers to drive higher profits, the casualty is ultimately the patient. Becerra has been hounded by Republicans and Democrats alike on this issue, and he should take notice. Not enforcing a bipartisan law as Congress intended to the benefit of insurers is policy–and political–malpractice. And it affects a core constituency of President Biden’s: working Americans with employer-based insurance who deeply value the benefits they believe they have.

 

Comment by: Jim Kahn

The terrific post by Wendell Potter discusses a perfect example of “regulatory capture”. That is, the entities being regulated (the insurers) influence regulation rules and processes to their considerable advantage. What looks like a benign term or phrase yields out-sized benefits. Huge impact cloaked in technical minutia.

Wendell attributes this situation to Secretary Becerra* and the likely influence of insurance lobbyists. I don’t disagree. However, the “revolving door” of employment in DHHS and its insurance regulator CMS (Center for Medicare and Medicaid Services) means that regulation writers may have a mindset and incentive to lean toward insurers. On many issues (if not this one), Congress exerts a pro-insurer influence.

Other recent examples of regulatory capture covered in HJM include:

1) Multiple technical tweaks that generate Medicare Advantage over-payments of >$100 billion per year.

2) A delay in / lowering of proposed corrections to risk adjustment gaming, worth $10 billion to insurers for 2024.

3) A requirement in ACO REACH to pay participating physicians lower than regular Medicare rates … saving the corporate intermediaries money and co-opting physicians into being co-conspirators for suppressing care utilization by patients.

So, the Biden administration is complicit with health insurers. This is not news, indeed the Affordable Care Act (Biden’s “big f-ing deal”) is a massive gift to insurers.

But make no mistake, the situation would be massively worse under a second Trump administration. We saw in his first (we hope only) term that ACA rules assuring fair insurance policies were completely circumvented by changing the definition of “temporary policy” to anything 364 days or less.

Let’s hold the HHS/CMS regulatory feet to the fire. But also, let’s give the Biden administration, despite blemishes in the health care arena, a chance to burnish its record.

By the way … as you know … under single payer, “out-of-network” charges is a non-issue.

* In his prior California role, Becerra was a single payer supporter.

About the Commentator, Jim Kahn

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Jim (James G.) Kahn, MD, MPH (editor) is an Emeritus Professor of Health Policy, Epidemiology, and Global Health at the University of California, San Francisco. His work focuses on the cost and effectiveness of prevention and treatment interventions in low and middle income countries, and on single payer economics in the U.S. He has studied, advocated, and educated on single payer since the 1994 campaign for Prop 186 in California, including two years as chair of Physicians for a National Health Program California.

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