CMA continues to fight ill-conceived HHS regulation on surprise medical bills

January 10, 2022
Area(s) of Interest: Out of Network Billing 

The California Medical Association (CMA), through the Physicians Advocacy Institute (PAI), has filed joint amicus curiae briefs in support of two lawsuits challenging federal regulators’ approach to dispute resolution under the No Surprises Act.

The lawsuits—one filed by the American Medical Association (AMA) and American Hospital Association (AHA), and the other by the Texas Medical Association—both take issue with the fact that the federal agencies responsible for implementing the No Surprises Act failed to follow clear direction from Congress on how arbiters should resolve surprise medical billing disputes between physicians and insurers under the law.

The statutory language of the No Surprises Act established a balanced process to fairly resolve payment disputes between physicians and insurers for certain unanticipated out-of-network medical bills, using several different criteria. Instead, federal regulators issued a rule that effectively upends the law, giving insurers an unfair advantage by relying almost exclusively on the insurers’ self-determined median in-network billing rate, instead of considering the multitude of factors called for under the law.

“The No Surprises Act requires arbiters to treat physicians and insurers fairly when resolving billing disputes. The interim final rule supported by insurers effectively undoes the law. If it is allowed to stand, it will boost insurers’ profits at the expense of physicians and patients,” said CMA CEO and PAI President Dustin Corcoran. “Physicians strongly support action to ensure the No Surprises Act is able to protect patients and promote fairness in resolving billing disputes as Congress intended.”

The deeply flawed regulation represents an approach Congress dismissed recognizing that it would make it harder for patients to access care. Implementing the regulation will drive down payment rates to physicians and encourage insurers to continue limiting the number of physicians who are “in network.” When more physicians are forced “out of network,” patients pay significantly more for health care. This business strategy, along with insurers creating high-deductible health plans with ever-higher deductibles, has been a substantial driver of patients’ surprise medical bills in recent years.

“Physicians have an obligation to reinforce for the court just how far federal regulators walked away from the No Surprises Act’s balanced approach to resolving payment disputes and explain how bypassing the law will unfairly empower insurers at the expense of patients and their physicians,” said Corcoran.

Importantly, the  lawsuits do not prevent the law’s core patient protections from taking effect and will not increase out-of-pocket costs to patients. They seek only to force the Administration to bring the regulations in line with the law before the dispute negotiations begin.

CMA also had submitted extensive comments to the regulators warning that the rule would produce the same unintended consequences that physicians and patients experienced under California’s AB 72.  CMA provided detailed evidence from California that demonstrated how insurers cancelled long-standing contracts or imposed significant rate reductions that forced physicians out-of-network and reduced patient access to in-network physicians, particularly on-call panels of physician specialists who treat patients in emergencies.

CMA will continue to aggressively press regulators, Congress and the courts for a more balanced system.  In the meantime, to help physicians understand their rights and obligations under the NSA, CMA has published an overview, “The No Surprises Act: What Physicians Need to Know.” The document is available to members-only.

CMA Webinar on No Surprises Act

CMA is also hosting a webinar on Wednesday, January 19, 2022, that will address the impact of the No Surprises Act on physicians in California, including the interplay with AB 72 and other California-level surprise/balance billing protections. The one-hour webinar – No Surprises Act: The New Federal Law and Its Impact on California Physicians – is free to members and their staff, and $99 for all other participants. Click here for more information and to register.

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