Surprise Billing Regulation Faces Pushback from Medical Groups

A letter from the American Medical Group Association (AMGA) called on CMS to revise the interim final rule implementing the No Surprises Act, explicitly changing legislation that favors insurers in the surprise billing federal independent dispute resolution (IDR) process.

The No Surprise Act was signed into law in December 2020 to protect patients from receiving surprise out-of-network medical bills. The interim final rule permits patients with an employer-sponsored or individual health plan to dispute denied payments for specific medical claims. The law goes into effect on Jan. 1, 2022.

Lawmakers created an attribution process detailed in the interim final rule that explains how providers and payers will determine out-of-network rates when surprise billing occurs.

The rule provides payers and providers with a 30-day negotiation period to dispute the pricing of medical bills. If both parties cannot reach an agreement after 30 days, either party can start an independent dispute resolution process.

The IDR process calls for the parties to select a certified IDR entity to mediate the dispute. The entity will then issue a determination based on the payer’s median in-network rate for a similar service in the area.

“CMS should recognize the danger of effectively predetermining the outcome of the arbitration process,” said AMGA President and CEO Jerry Penso, MD, MBA, in the press release. “By favoring a particular rate, the process could influence how payers negotiate future contracts with providers.”

The organization representing over 170,000 physicians emphasizes the necessity for revision to the IDR process to avoid undermining negotiations between payers and providers by disproportionately weighing one factor, the qualifying payment amount (QPA).

“While the law includes several factors for the IDR entity to consider as part of the process, the [interim final rule] effectively dismisses most of these factors in favor of the QPA. The [interim final rule] indicates that the IDR entity ‘must look first’ to the QPA and then move to other considerations. The regulation goes on to indicate the statute provides ‘limited guidance”’on how these additional factors should be considered,” Penso stated in the letter to CMS.

AMGA encourages CMS to consider a variety of factors such as demonstration of good faith, market shares of both parties, patient acuity, level of training, quality of the clinician, services offered by the facility, and insurer median in-network rate during the IDR process to determine the fairer and more appropriate rate.

CMS also requires providers to offer a good faith estimate (GFE) of the cost of items and services provided to uninsured or self-pay patients as a part of the interim final rule. AMGA explains that GFEs will create more confusion for uninsured and self-pay patients, lead to inaccuracies, and overwhelm provider’s administration and non-clinical staff

“The GFE is not a contract, but rather only an estimate. All of this will likely create confusion and additional frustration for patients, which is exactly the opposite of what the No Surprise Act intended,” Penso explained in the letter.

“For the GFE to be useful, the patients will need to be specific and accurate about all the services they are requesting. It is unreasonable to assume patients will have the knowledge needed to provide the information for non-clinical staff to cypher through tens of thousands of CPT and diagnosis codes for a meaningful estimate.”

AMGA urges CMS to stop the implementation of the impending GFE requirement.The organization notes that they are not alone in their concerns regarding the IDR process.

Recently, more than a third of representatives wrote to the secretaries of Health and Human Services, Treasury, and Labor addressing their issues with the IDR process and urging them to amend the rule.