For far too long, patients and their families suffered the financial consequences of surprise medical bills. Thankfully, bipartisan passage of the No Surprises Act (NSA), prevented more than 9 million surprise bills from reaching American families across the country in just the first 9 months since the law took effect.
Despite the critical protections enshrined in the law, certain provider groups and private-equity firms continue to attack the protections meant to help patients – through multiple harmful lawsuits and even banding together to form a new lobbying group comprised of five private equity-backed physician staffing firms. A hearing is scheduled on December 20th in the second of three lawsuits filed by both the Texas Medical Association (TMA) and LifeNet/Air Methods. These lawsuits (TMA II and LifeNet II) challenge provisions of a recent final rule implementing important arbitration processes and basic guardrails for arbitrators to follow when evaluating payment disputes. The lawsuits – just two of nearly a dozen filed to date – reflect a coordinated and ongoing effort by providers to weaken important regulations designed to help foster predictability and certainty in the new arbitration process established by the No Surprises Act.
Organizations representing patients, consumers, employers, and health insurance providers filed amicus briefs in support of the Administration’s position in this lawsuit, arguing the Federal IDR process needs reasonable guardrails and rules that prioritize lowering health care costs for the benefit of patients, employers, and unions. The briefs, including those led by The Leukemia & Lymphoma Society, the American Benefits Council, and AHIP, came after repeated attempts by the Texas Medical Association and other provider organizations to use the courts to erode arbitration rules in a way that would upend the IDR process, increasing the costs of IDR, which will ultimately hurt consumers.
Find key excerpts from the amicus briefs below:
- The Leukemia & Lymphoma Society
- “The Act recognized the need for a streamlined IDR process to help resolve disputes about the payment of out-of-network bills. The Act required the Departments to establish procedures through the IDR process by which those disputes would be resolved in a fair and cost-effective manner. The Departments, in executing this responsibility through the Rule, have established common-sense procedures and safeguards to further these interests.”
- “In addition to higher out-of-pocket costs, surprise medical bills increase health care costs, which, in turn, increases premiums for those with private health insurance. One study found that health care spending for people with employer-sponsored insurance would be reduced by 3.4 percent (about $40 billion annually) if certain hospital-based specialists—anesthesiologists, pathologists, radiologists, and assistant surgeons—were unable to send surprise bills to patients.”
- “In issuing the Rule, the Departments responded to concerns shared by the public during the rulemaking process and established a reasonable, uniform process designed to limit variability in payment determinations, reduce gamesmanship or abuse of the IDR process, and in turn, control the escalation of health care costs that would ultimately be passed on to patients and consumers in the form of higher premiums.”
- American Benefits Council
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- “[…] The Final Rule fits squarely within the statutory text and structure adopted by Congress and the Final Rule establishes common sense, minimum, but essential, procedural guardrails around how IDR entities should evaluate the various factors that it must consider—guardrails that are necessary to prevent IDR entities from considering information that is (1) duplicative, (2) not credible or (3) unrelated to the benefit claim before the IDR entity.”
- “The Final Rule ensures that the resulting payment determinations are based on the factual circumstances under which the IDR-eligible item or service was rendered, as opposed to circumstances that are not probative of the question before the IDR entity—the determination of which offer is most reasonable. This basic requirement regarding probative value not only promotes both consistency and predictability in outcomes, but also importantly promotes efficiency in the IDR process itself, which helps mitigate some of the burden imposed on parties and IDR entities imposed by the unexpected volume of IDR initiation requests.”
- “The Final Rule also supports more consistent results across different plans and providers, as compared to an IDR system with no guardrails. Clear guidance on the IDR process benefits all involved by allowing for similar claims to be processed in the same way preventing dissonant outcomes in similar circumstances, which would vex both providers and insurers by potentially awarding different amounts for the same services provided under nearly identical circumstances, contrary to Congress’ intent and the directive to establish a single, uniform IDR process.”
- “Failing to implement the IDR process consistent with the statute will increase incentives for in-network providers to negotiate higher in-network rates to stay in-network, or create incentives for providers to avoid or leave networks, thus driving up the patient cost sharing outside of surprise billing situations, increasing overall premium costs for employers and enrollees, and reducing savings for taxpayers—all results Congress clearly sought to avoid.”
- “The NSA was designed with the twin goals of protecting patients from financial harm associated with surprise balance billing and thus creating cost savings for patients and the health care delivery system as a whole. While the Final Rule promotes that underlying policy to a lesser extent than the IFR did, the modicum of predictability and consistency promoted by the Final Rule helps avoid a situation in which the implementation of the NSA, in and of itself, raises overall costs to the health care system.”
- AHIP
- “AHIP’s members strive to reach agreements with health care providers to offer consumers affordable networks that provide choices in the delivery of quality medical care. When unable to secure network agreements before treatment is rendered, health insurance providers seek to negotiate reasonable out-of-network payments to prevent surprise medical bills and reduce costs for patients. But before the No Surprises Act, providers often leveraged their refusal to participate in networks to send patients excessive surprise bills and extract payments well above typical market rates.”
- “Plaintiffs’ amicihave no basis to claim that the Final Rule will drive health insurance providers to slash rates and narrow networks. Networks are designed to provide affordable access to quality care and breadth of choice, not just cost. In fact, there are early signs of a beneficial trend, where the Act has furthered good faith network negotiations over reasonable rates. Because the Final Rule in some measure enhances IDR predictability, it should encourage such network-building, which ultimately benefits the patients who receive high-value, quality care.”
- “The overwhelming volume of IDR proceedings dwarfs the Departments’ initial estimates. In the first five and a half months of the IDR system, 90,000 proceedings were initiated. …This is over four times the number of IDR proceedings projected for the entire first year. …Annualizing this early data suggests nearly 200,000 IDR proceedings per year—ten times the projected volume.”
- “Further compounding the potential for significant uncertainty around IDR outcomes is the fact that thousands of IDR proceedings are being juggled by many different IDR decision-makers. Congress required IDR decisions to be made by private entities. … To date, thirteen different entities have been certified. …Each entity is home to countless decision-makers. The involvement of so many disparate decision-makers cries out for guidance to ensure that IDR entities operate consistently on a nationwide basis in carrying out their statutory duties.”
Read the full amicus briefs filed by the American Benefits Council, AHIP, and the Leukemia & Lymphoma Society.
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