Coalition decries legal challenges to No Surprises Act

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A number of healthcare organizations, including AHIP and the American Benefits Council, have banded together to criticize legal challenges to the No Surprises Act, the 2020 law that aimed to take patients out of billing conflicts between providers and payers. 

By all accounts this part of the law has been successful in preventing patients from getting a surprise medical bill when they see an out-of-network physician at an in-network hospital. But in February, a federal court vacated provisions of a final rule regarding the arbitration process under the No Surprises Act and remanded it back for further consideration.

U.S. District Court Judge Jeremy Kernodle sided with the Texas Medical Association's argument that the final rule unlawfully conflicts with the NSA in restricting arbitrators' discretion and unlawfully tilts the arbitration process in favor of the Qualifying Payment Amount set by insurers.

The court concluded that the challenged portions of the final rule are unlawful and must be set aside under the Administrative Procedure Act.

This inspired organizations to form the Coalition Against Surprise Medical Billing, which is criticizing not just that decision but the almost 20 lawsuits that have popped up looking to strike portions of the law, which the coalition maintains has been effective in preventing surprise bills and curbing healthcare spending. 

Kinika Young, director of legal advocacy for the Leukemia & Lymphoma Society, spoke Tuesday of the good the NSA has done, saying that one out of six patients has received a surprise medical bill before the act was passed, while there was about $40 billion in additional health spending. 

The NSA has resulted in one million bills avoided per month, said Young.

"The lawsuits threaten that," she said. "The plaintiff seeks higher reimbursement in the dispute resolution process. That would increase healthcare costs, and would likely be passed on to patients in the form of higher insurance premiums. Increasing the QPA would increase patients' share. The lawsuit threatens to drag patients and consumers back into the fight."

Katy Johnson, senior counsel of health policy, American Benefits Council, had general overarching concerns with the direction of the litigation. Describing it as "death by a thousand cuts," Johnson framed it as an attempt to dismantle the law piece by piece.

"QPA is so central," said Johnson "It's the basis for cost sharing for many employees, so our members care deeply about that. It's also oftentimes related to the amount plans will pay as the initial amount, and is often a factor in the arbitration process. That also must be considered during independent dispute resolution."

Adam Beck, senior vice president of commercial product and employer policy, AHIP, said there's still a lot the industry doesn't know.

"What we know for certain is the NSA is saving patients money and giving them greater peace of mind," said Beck. "They have lower and more predictable cost sharing. However, there's a great deal we don't know right now, and that's because the federal IDR process has been in place for only a year, and we haven't seen the report yet. We have to know which parties are prevailing in what types of disputes under the NSA. We should be patient and prudent and make data-driven policy decisions."

According to Beck, about three quarters of the disputes in the first year were coming from about 10 entities, and one out of three came from just one staffing company. Eight of the 10 entities are backed by private equity.

"The NSA is working for patients – it's not working for private equity," said Beck. "That's why you're seeing these lawsuits and challenges. If the NSA works the way it's supposed to, that's a bow to private equity-backed physicians. Let's not confuse one judge's decisions as an indication that the NSA isn't working. There are challenges from a small number of practices in a few states, threatening their model of balance billing patients.

"We should shape policy around the idea that the NSA needs to work for generations to come, and does so in a way that reduces the costs we all pay for healthcare," he said.
 

Twitter: @JELagasse
Email the writer: Jeff.Lagasse@himssmedia.com