The CAP has strongly opposed new federal regulations that give insurance companies the upper hand during what should be an impartial independent dispute resolution (IDR) process as set in the No Surprises Act. The interim final rule for the IDR process, released on September 30, disregards Congress’s intentions of creating a fair system where physicians and health insurers can resolve disputes without one single factor having more weight than another.

Congress passed the No Surprises Act in December 2020. The final legislation included several provisions the CAP adamantly pushed for, such as holding patients financially harmless, fair reimbursement for care, and efforts to address network adequacy standards. Congress established a balanced IDR process to ensure physicians are paid appropriately for the services they provide.

“The new rules to implement the No Surprises Act ignore congressional intent,” said CAP President Emily E. Volk, MD, FCAP. “Congress was quite clear that to ensure an equitable and balanced system to resolve disputes no single factor should be given preference over others. However, the new rules will favor payment rates developed by insurance companies, which will only exacerbate ongoing health plan manipulation and disincentivize insurers from offering fair contracts to physicians caring for patients.”

American Medical Association President Gerald A. Harmon, MD, who spoke recently at CAP21, also said the new rules ignored the insurance industry’s role in creating the problem of surprise billing at the expense of independent physician practices whose ability to negotiate provider network contracts continues to erode.

“Congress appreciated the negative consequences of national price setting for health care services and spent considerable time and effort developing a robust independent dispute resolution process to maintain market balance and preserve access to care, which the Administration apparently ignored,” Dr. Harmon said. “It also is apparent that the Administration failed to appreciate the importance of creating an accessible and impartial dispute resolution processes as a backstop against even greater insurer abuses.”

In the regulations, effective January 1, 2022, the Centers for Medicare & Medicaid Services (CMS) stated that when making a payment determination, certified IDR entities must begin with the presumption that the insurer’s initial qualifying payment amount, for an out-of-network service is the appropriate amount. For an IDR entity to deviate from the offer closest to that qualified payment amount any information submitted must demonstrate that the value of the service is materially different.

However, the No Surprises Act states that an impartial IDR entity must equally consider many factors, such as training and quality outcomes, patient acuity or complexity of services, and prior contract history between the two parties over the previous four years.

The CAP will remain engaged with the CMS to address the regulations and ensure they follow the statute.