No Surprises Act to tip 'disputes in insurers' favor', physicians warn


The American Association of Orthopaedic Surgeons is calling on federal regulators to update the process for resolving out-of-network medical billing disputes to be more closely aligned with the No Surprises Act.

Instead of creating a fair process for physicians and insurers to settle payment disputes in a way that protects patients, the "Requirements Related to Surprise Billing; Part II Interim Final Rule" — which takes effect Jan. 1 — will hurt physicians who are already challenged by the economic difficulties of the pandemic and are facing a 9.75 percent Medicare reimbursement cut in 2022, according to the association.

As written, the legislation "tips the scale in insurers' favor," AAOS President Daniel Guy, MD, said in a Dec. 3 letter to CMS Administrator Chiquita Brooks-LaSure. He argues that the rule makes the insurer-formulated Qualifying Payment Amount — calculated as the median in-network rate — the presumptive appropriate payment amount as opposed to equally considering factors that affect payment as intended by the law.

There is concern that enacting the legislation in its current form could incentivize payers to set artificially low payment rates, creating more narrow provider networks and reducing access to care. Physicians argue that a key reason many providers are out of network is because payers offer contract rates that are untenable to cover the cost of care.

If enacted in its current state, the rule will exacerbate this issue by "creating an ad-hoc system of benchmarking which guarantees every patient in-network cost-sharing and in-network payment to physicians, while shutting physicians out of an independent dispute resolution process that accounts for their work and expertise in a meaningful way," according to Dr. Guy.

The association argues that this is the opposite of what the No Surprises Act was designed to do, and that enacting the rule without amendments would suggest the government is willing to prioritize cost-saving measures targeting front-line physicians over patient safety and access to care.

Other areas of concern include details of the independent dispute resolution process, unintended consequences of providing the good faith estimate to patients, physician-patient dispute resolution process for uninsured and self-pay patients and the burdens of this process for underrepresented communities.

Dr. Guy called on regulators to update the rule to "reflect the statutory language and intent of the law" so these "consumer protections ensure both patients' access to care and the financial health of their physicians."

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