Insurers already exploiting the surprise billing law

Dr. Gillian Schmitz / January 21, 2022

Congress passed the No Surprises Act last year to protect patients from surprise medical bills. This bipartisan legislation was on its way to being celebrated as a victory by all involved—something increasingly rare in Washington, D.C., these days. Unfortunately, insurance companies are already exploiting the way the Biden administration is implementing the law.

The American College of Emergency Physicians (ACEP) supports the patient protections in the No Surprises Act, but the law's implementation language completely ignores congressional intent to create a fair independent dispute resolution (IDR) process.

While the law instructs the arbiter of the IDR process to consider all information shared by the insurer and physician, the administration made the qualified payment amount, a subjective rate set by insurers, the primary factor in the process. This sets an artificially low benchmark payment that insurers can use to drive their payments even lower and push more physicians out-of-network.

As soon as the administration announced its plan, emergency physicians received a chilling letter from Blue Cross Blue Shield of North Carolina, threatening to end their agreement to be in-network unless the physicians accept a 20% cut in reimbursement for necessary medical care. Why the sudden change? Blue Cross Blue Shield directly cites the implementation of the No Surprises Act as its rationale.

Similarly, UnitedHealthcare is attempting to bully physicians to accept a 40% cut or they lose their contract. The American College of Emergency Physicians will keep alerting legislators about these strong-arm tactics because insurance companies will continue unless they are stopped.

It is important to understand how these tactics impact patients. Emergency departments, especially those in small or rural communities, will be forced to make difficult decisions on how to spread already thin resources to continue to treat their patients. Options on the table include cutting staff, changing hours, and adjusting workloads so they can meet their legal obligation to stay open 24/7 and see every patient that comes through the doors—no easy feat in the middle of a pandemic when they're already understaffed and facing major professional burnout.

Things have been tough for emergency physicians—especially those who run their own practices. Bad behavior by insurers—like canceling contracts and denying payment for services—continues to strain many physician-run groups already buckling under enormous pressure.

Insurance companies aided by the regulatory language that guides NSA implementation are choosing policies that put emergency departments at risk of closing. That is heartbreaking, but more than that, it is dangerous. It is impossible not to worry about the safety of thousands of people, especially in small towns or underserved areas, where the next available emergency physician is hours away.

In practical and immediate terms, the implementation of this law will diminish the ability of front-line professionals to treat patients during surges, whether that means caring for an influx of people with COVID, victims of a mass casualty event like a shooting, or helping people with heart attacks or drug overdoses.

Insurance companies argue that cutting physician reimbursements will create opportunities to make insurance coverage more affordable for everyone. However, year after year insurers rake in profits while the cost of employer-sponsored family health coverage goes up. According to the Kaiser Family Foundation, the financial burden of deductibles has increased by 92% in the past decade.

The cuts facing emergency departments in North Carolina would be disastrous anytime, but they hurt a lot more in the middle of a pandemic when healthcare providers are already burned out, overworked, and facing increasing financial strain.

Congress carefully crafted the No Surprises Act to create an unbiased process to resolve billing disputes. When the administration wrote the implementation rules, they fundamentally altered the compromise that all involved spent years negotiating. These dangerous revisions cannot stand.

ACEP, the American College of Radiology, and the American Society of Anesthesiologists are taking legal action to reverse the federal government's last-minute changes. We will fight to ensure the No Surprises Act solves surprise bills as Congress intended, rather than allowing insurance companies to twist the legislation to benefit themselves—leaving patients and physicians in the cold.