House lawmakers blast Xavier Becerra for blaming docs for surprise billing arbitration backlog

House Republicans chided Department of Health and Human Services (HHS) Secretary Xavier Becerra for laying blame for a backlog of surprise billing arbitration disputes at the feet of physicians.

Republicans on the House Energy and Commerce Committee’s health subcommittee told Becerra during a hearing Wednesday that the secretary should have anticipated massive interest in arbitration dispute, which went into effect recently to settle feuds between payers and providers for out-of-network charges. 

“I believe to the extent that this process is a failure and a failure because of poor planning on HHS,” said Rep. Michael Burgess, R-Texas, during the hearing. 

Under the No Surprises Act, a payer and provider can ask a third-party arbiter to choose between two amounts for an out-of-network charge. The arbitration process went into effect in February 2022, and, in the first eight months, the agency received 164,000 claims, Becerra said.

“Neither you nor I … believed we would have the volume of submission of claims,” Becerra told Burgess.

Burgess said that providers have been winning much more often than they lose, posting a win rate of 75%. However, because of an HHS backlog, only 3% of submissions have made it through the process, he added. 

The process has also been paused several times due to court rulings challenging the legality of the standards the arbiter must consider when selecting an amount. 

“Those physicians who are having success will start to see a slowdown in the adjudication of those claims,” Becerra said.

The HHS secretary has previously said in other congressional hearings that most of the claims submitted by providers have been frivolous. Other officials have said the tidal wave of claims is straining agency resources.

But Burgess claimed that HHS should have anticipated the deluge of claims. He pointed to a similar law in Texas that had 45,000 arbitration claims in the first year.

“Did you not look at the data that had already been accumulated in a single state for a similar law in the year and a half before it started?” Burgess said. “To turn around and blame providers for your department not being prepared for the volume of claims just doesn’t square with me.”

Other Republicans on the panel were miffed at the backlog and lack of progress in implementing the law. 

“We recently heard in [independent dispute resolution] situations that even though providers are winning those cases, we still don’t have insurance companies paying after they have lost,” said Rep. Larry Bucshon, M.D., R-Indiana. “We need to see what we can do to make sure that happens.”

Rep. Mariannette Miller-Meeks, R-Iowa, also called on Becerra to put together a rule that meets the intent of Congress after legal setbacks in regulations surrounding the arbitration process. 

“We feel the comments we have gotten back from HHS have been less than satisfactory,” she said. 

Miller-Meeks was referring to a long-standing legal feud between providers and HHS on how arbiters should pick an amount. The Biden administration’s initial rule back in 2021 called for the arbiter to put a heavy emphasis on picking the amount closest to a qualifying payment amount, which is the average price for an item or service in a geographic area. 

The Texas Medical Association (TMA) sued to halt the rule, arguing that it contradicts Congress’ intent in the law not to have a benchmark rate play a part in arbitration. A federal judge agreed, and HHS released a revised rule last year that allows the arbiter to consider other factors. 

However, the TMA sued again, arguing that the new rule still put too much emphasis on the qualifying payment amount. A lower judge again sided with the group, and HHS is trying to figure out whether to appeal. The court rulings have led HHS to pause the arbitration process at times, with the most recent break ending earlier this month.