House lawmakers are calling for the Biden administration to make provider-friendly changes on a final rule implementing the No Surprises Act, saying it doesn’t follow the law’s intent.
Leaders of the House Ways and Means Committee sent a letter Friday to several agencies implementing the No Surprises Act, which bans surprise medical bills. The lawmakers say the rule tilts an independent arbitration process in the favor of insurers and doesn’t fix problems outlined in an original regulation released last year.
“We are severely disappointed to find that the August 2022 final rule violates the No Surprises Act in the same ways as before,” wrote Reps. Richard Neal, D-Massachusetts, and Kevin Brady, R-Texas.
The law banned surprise medical bills and directed payers and providers to enter a third-party arbitration process to settle disputes surrounding out-of-network charges. Each party would submit an amount for the charge, and the arbiter would pick one.
How that arbitration should be conducted has sparked major lawsuits from the provider industry.
The original 2021 interim final rule called on the arbiter to put the most emphasis on the amount that was closest to a qualifying payment amount (QPA), which is the geographic average for the service.
Several provider groups sued, arguing that the law did not call for the arbiter to hew so closely to an average rate. Earlier this year, a federal judge sided with the Texas Medical Association that the law should be struck down.
The Biden administration then went back to the drawing board and created a new final rule back in August.
The rule still called for the arbiter to consider the QPA but also to grant equal weight to other factors. Neal and Brady argue that the final rule still tilts the arbitration process too much toward the QPA.
“The final rule precludes [arbitration] entities from giving weight to factors like patient acuity and the complexity of furnishing the item or service at issue unless providers meet the heightened burden of disproving double-counting within QPA,” the lawmakers wrote.
They added that the calculation methodology for the QPA is a “complete mystery to all but plans and issuers.”
Neither the providers nor the arbiter would be able to evaluate the QPA to determine “whether other factors are already accounted for, and, as a result, providers cannot prudently submit information that rebuts assertions of double-counting in the QPA,” the letter said.
Neal and Brady have taken umbrage with how the administration has implemented the No Surprises Act before. The committee leaders also called on the administration to overturn the interim final rule because it strayed from the law’s intent.
The Texas Medical Association has filed a new lawsuit against the administration, hoping for a similar result surrounding the new final rule.
The Department of Health and Human Services, which crafted the rule alongside the Labor and Treasury departments, did not return a request for comment as of press time.