As members of the U.S. House Committee on Ways & Means delved into the flawed implementation of the federal No Surprises Act in a recent hearing, discussion – and commendation – turned several times to the Texas Medical Association’s leadership on the topic.
TMA has sued federal regulators four times over rulemaking related to the law, which took effect Jan. 1, 2022, saying they failed to follow clear direction from Congress.
Committee members and testifiers echoed many of TMA’s concerns about the law’s implementation.
“I absolutely applaud the Texas Medical [Association] for suing against this,” U.S. Rep. Greg Murphy, MD (R-North Carolina) said, criticizing regulators for favoring payers and payers for exploiting the resulting advantage.
“This [law] has become an absolute boondoggle for insurance companies.”
U.S. Rep. Lloyd Doggett (D-Texas), an early champion of patient protections from surprise medical bills, spoke about the need for such legislation.
“I was inspired by [constituent] stories – in my case, a Texas woman who did all the checking to be sure she was in-network,” he said. “Then some instrument was used, unknown to her, in the course of the surgery, and she got a huge bill for that instrument, which was out of network.”
Congress intended to prevent such situations by enacting the No Surprises Act, but some members – including U.S. Rep. Jason Smith (R-Missouri), who chairs the committee – have been disappointed by what’s happened since.
“The law’s implementation has made the very problem it intended to fix worse, resulting in more medical providers no longer covered under health insurance networks,” Representative Smith said in his opening statement. “The rules implementing the No Surprises Act have inflamed an existing [physician] staff shortage in an industry where having too few people can be a life-and-death matter.”
Emergency physician Seth Bleier, MD, vice president of finance for the Wake Emergency Physicians Professional Association in North Carolina, testified to the law’s impact on physician practices.
Prior to the law’s implementation, his practice was in network for each of the region’s major payers. Since 2022, however, Dr. Bleier said two payers have kicked the practice out of network, forcing the practice to accept as much as a 70% pay cut as a condition of reentry.
“It’s like putting salt in a wound,” he told committee members. “Not only are our providers working as hard as they can, as best they can, under very adverse circumstances, but when, on top of that, their fair-market [payment] is cut, it makes it very damaging to them.”
Such cuts threaten the practice's viability and, as a result, its patients’ access to care, Dr. Bleier cautioned.
“If this continues, I don’t see any way we could continue the level of care that we currently are providing,” he said, adding that a reduction in staffing hours and potentially layoffs could result.
Dr. Bleier also raised concerns about the law’s independent dispute resolution (IDR) process, through which physicians and payers resolve out-of-network billing disputes. As implemented, the process is prohibitively expensive and slow, he said.
“Even when we win an IDR case, we effectively lose due to the fees associated with it,” he explained.
TMA’s lawsuits strive to ensure the IDR process is fair for physicians. They include:
- One filed in 2021, which TMA later won at the federal district level, alleging that, in the interim final rules governing arbitrations between payers and physicians, federal agencies unlawfully required arbitrators to “rebuttably presume” the offer closest to the qualifying payment amount (QPA) was the appropriate out-of-network rate.
- A second filed in September 2022, which TMA also later won at the federal district level, alleging the final rules unfairly advantaged health insurers by requiring arbitrators to give outsized weight or consideration to the QPA. The federal government is appealing the decision.
- A third filed in November 2022, which TMA won at the district court level, challenging certain portions of the interim final rules setting forth the methodology insurers use to calculate the QPA.
- And a fourth filed in January 2023, which TMA won at the federal district level on procedural grounds, challenging a steep jump in the administrative fee – from $50 to $350 – that physicians must pay to participate in the arbitration process. TMA also took issue with regulators’ narrowing of the law’s “batching” provisions, which Congress authorized to encourage efficiency and minimize costs in the IDR process.
Jeanette Thornton, executive vice president of policy and strategy for America’s Health Insurance Plans, lamented “an overwhelming number of disputes and repeated litigation from the Texas Medical Association that has created regulatory uncertainty and repeated starts and stops” in her witness statement.
But Dr. Bleier told committee members that TMA’s lawsuits are a beacon for physicians around the country.
“We’re very hopeful – very hopeful, fingers crossed – that these Texas Medical Association lawsuits will actually bear fruit [and] that the regulation of this bipartisan piece of legislation will be implemented with the intent of the law,” he said.
Representative Murphy referenced legislation he has proposed that would impose late fees – compounded daily – on payers that refuse to pay arbitration awards on time.
“There [were] no teeth in the [No Suprises Act], sadly enough,” he said. “We’re going to get to some teeth in this.”
For information and news regarding the No Suprises Act, visit TMA’s resource page.