At a time when the harm of Independent Dispute Resolution (IDR) abuse and misuse to consumers and employers is abundantly clear, the No Surprises Act Enforcement Act (H.R. 4710/S. 2420) ignores every problem with arbitration that policymakers should address. Congress is considering the bill amid a drumbeat of investigations, editorials, and warnings — from The New York Times, STAT, Bloomberg, The Washington Examiner editorial board, and most recently, the Congressional Budget Office (CBO). All have documented how certain private equity-backed providers and IDR middlemen have turned IDR into a profit engine at the expense of families and employers.
IDR abuse is systemic and well documented
- A recent investigation by The New York Times found surgical assistants using IDR to out-earn the surgeons they support by as much as 25 to 1. In one case, the surgeon who removed a cancerous prostate earned $1,843; the assistant who handed him the instruments won $50,456. Another assistant billed the equivalent of $22,000 an hour.
- A recent analysis from Turquoise Health highlighted in STAT found a common spine surgery that costs $1,400 in-network drawing median IDR awards of nearly $34,000 — 24 times higher. STAT’s reporting also highlighted the exorbitant IDR awards for breast reduction surgery, which is “one of the highest-volume surgical codes in federal arbitration, with about 2,700 cases and about $150 million in total payments to providers since 2023.”
- For that procedure, “Turquoise found the median in-network rate was $1,420, while the median IDR award was almost $61,000, or 43 times higher, with some awards extending above $180,000.” The New York Times also recently profiled a New York surgeon whose practice once got $440,000 for that procedure under IDR.
- Bloomberg reported on new data from the Elevance Health Public Policy Institute, which found that “over the last two years, median arbitration awards won by out-of-network doctors for the most common billing codes for planned procedures are 53 times the in-network rate.” The reporting and analysis highlight how doctors are exploiting a loophole under the No Surprises Act meant to exclude planned procedures where patients knowingly consent to paying for out-of-network care.
- CBO now warns that “arbitration outcomes could lead to higher prices over time” — meaning higher premiums and larger federal deficits. CBO added that “the number of IDR cases has far exceeded projections, and awarded payments are often much higher than anticipated. Amounts from arbitration settlements may be much larger than the typical prices for health care services…”.
The Washington Examiner editorial board put it plainly: IDR has become “a multibillion-dollar windfall for hospitals, doctors, lawyers, and arbitrators. Patients pay the price through higher insurance premiums.” Its verdict: “This is not patient protection but industrialized lawfare,” and “Congress ended surprise bills once. Now it must end the arbitration racket it created.”
The No Surprises Act Enforcement Act ignores all of it
All of the reporting describes the persistent and systemic problem of certain private equity-backed providers and IDR middlemen abusing the IDR system to demand inflated awards, and the impact of those costs on premiums for employers and consumers.
Yet, the No Surprises Act Enforcement Act blatantly rewards the costly abuse of IDR by adding new financial penalties plus interest on top of awards — however inflated — that likely shouldn’t have been eligible for IDR in the first place. It does nothing on the flood of ineligible disputes. Nothing on runaway awards. Nothing on bad-faith batching. Nothing on the conflicts of interest of IDR entities that profit from every finalized dispute.
That $50,456 award for handing a surgeon his instruments? Under this bill, if an employer pays late — even because the arbitrator failed to provide the information needed to process the claim — it could triple. Those costs land on the workers and families whose premiums are already climbing.
The fixes are obvious: clear guardrails on awards, automatic eligibility screening, penalties for bad-faith initiation, and real oversight of IDR entities. The No Surprises Act Enforcement Act does none of this. A bill about IDR that ignores everything about IDR should be opposed.
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