CMA urging Congress to fix two poison pills in surprise billing legislation

December 15, 2020
Area(s) of Interest: Public Payors Out of Network Billing 

Friday evening, a new bipartisan, bicameral proposal to address surprise medical billing—The No Surprises Act—was introduced and is intended for action before the 116th Congress adjourns in a few days. The California Medical Association (CMA) is urging physicians to contact their legislators now and tell them to stand up for patients and physicians by opposing the No Surprises Act.

CMA today sent a letter to the California Congressional Delegation, thanking them for the substantial improvements made to the bill but also urging them to work to ensure that any surprise billing legislation is fair and balanced, protects patient access to physicians and incents powerful for-profit insurers to fairly contract with physicians.

“Protecting patients from surprise bills is a priority for the CMA, but equally important is ensuring that any solution does not jeopardize patient access to the safety net of emergency and specialist physicians that care for patients in emergencies and come into the hospital in the middle of the night,” CMA President Peter N. Bretan, Jr., M.D., wrote in the letter.

CMA worked closely with the committees and leadership offices to achieve improvements to the “No Surprises Act.” Despite these CMA-supported improvements, CMA continues to have serious concerns with two poison pills that were included in the legislation that undo any real progress made in other parts of the legislation to incentivize insurers to contract and ensure a balanced dispute resolution process. 

  1. Medicare and Medicaid rates can be included in the dispute resolution process. Insurers are allowed to submit payment rates for Medicare, Medicaid and other government programs to arbitration. Rates in these programs are set to meet federal and state budget constraints and do not reflect the commercial private market where ERISA plans operate. CMA is strongly urging Congress to only allow rates paid in the commercial market to be considered in the dispute resolution process. This provision is blatantly unfair and will heavily influence private market rates for in-network services. CMA is extremely concerned that it will lead to reduced private sector payment rates at a time when physician practices are already struggling with the impact of the COVID-19 pandemic. 
  2. The 90-day “cooling-off period” creates an unfair hurdle to resolving disputes.
    While we support the initial 30-day “open negotiation” process to informally settle claims, we are opposed to a full day 90-day cooling-off period that ultimately allows insurers 165 days before they must remit payment to physicians.  Small- and medium-sized physician practices operate on thin margins and cannot wait more than five months to get paid. If an insurer can wait 165 to pay the full claims and have Medicare and Medicaid rates as payment factors, there is little incentive for insurers to contract with physicians upfront. CMA is urging Congress to remove the cooling-off period or reduce it to 30 days to protect the financial viability of physician practices. 

CMA is also extremely concerned that the effective date of the No Surprises Act would be just one year away—January 1, 2022.  Our nation’s physicians will still be administering vaccines and recovering from the health and economic fall-out of the pandemic. Because patients are already protected during the public health emergency from surprise bills, CMA is urging Congress to move the date back to allow more time for practices to recover and adjust and the administration to stand up a new system.

CMA’s letter asks Congress to make these and other important changes to bring more balance to the bill, to reign-in the powerful for-profit insurers who have made record profits during the pandemic, to ensure patients have a safety net of physicians to care for them into the future, and to protect physicians who have fought to keep patients safe and alive during one of our nation’s most terrible health crises. 

This legislation would only apply to federally-regulated ERISA employer-sponsored plans. Federal law would not preempt state laws related to surprise billing, such as California’s AB 72.

Take Action

California physicians strongly agree it is critical to protect patients from surprise medical bills and we firmly believe that a thoughtful, measured federal solution is possible to achieve. However, now is not the time to adopt flawed surprise billing legislation.

Please contact your members of Congress now and tell them to stand up for patients and physicians by opposing the No Surprises Act!

For more information:



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