On March 18, 2024, thirty-nine (39) members of the United States House of Representatives sent a letter urging federal agencies to finalizing rulemaking regarding the implementation of the No Surprises Act. The letter, addressed to the Secretaries of the Department of Health and Human Services, the Department of the Treasury and the Department of Labor (collectively, the Departments), encouraged the Departments to finalize proposals from the November 2023 Independent Dispute Resolution (IDR) Operations Proposed Rule, and to give additional focus to problem-areas reported by constituents.

Specifically, with respect to the IDR Operations Proposed Rule, the Representatives urged the Departments to finalize the proposals to:Permit parties to batch all items or services associated with a single patient encounter;

• Require payors to share information with providers related to whether the claim is eligible for the IDR process;
• Require the parties to document participation in the open negotiation process in the federal IDR portal;
• Create a process for the government to assist IDR entities to reduce any backlog in processing disputes; and
• Require payors to register with the Departments for the IDR process, and to provide information to the Departments regarding the applicability of the IDR process to items and services covered by the plan.

The Congressmembers also raised additional concerns reported by constituents, including continued problems with the calculation of the Qualifying Payment Amount (QPA), network shrinking, and compliance with and enforcement of timelines for payment required by statute. To address these issues, the Congressmembers encouraged the following:

• Improved administration and enforcement of the QPA. Providers report concerns that insurers are including rates that improperly depress the QPA, such as including “ghost rates” or rates for services a provider does not actually furnish.
• Increased monitoring of payor’s efforts to shrink networks and decrease payments in light of the NSA. Providers report that insurance companies are using the NSA to push providers out of network, are reducing payments for out-of-network services, are failing to make timely payments for out-of-network services and are refusing to engage in the open negotiation process. The letter cited one 2023 Impact Analysis by Americans for Fair Health Care, that found 36% of in-network contracts were terminated with 81% of providers in hospital-based specialties having at least one contract terminated following the enactment of the NSA. The analysis also found that payors cut payments by 52% after terminating in-network contracts, and 94% of providers received payments priced at or below Medicare rates. The Representatives expressed concern at these trends and asked the Departments to more proactively monitor such trends.
• Enforcement of the statutory payment requirements. Providers report that some payors are not making payment within 30 days of an IDR determination, which has required some providers to turn to the courts for enforcement of IDR decisions. The Representatives urged enforcement of the payment deadlines, and further urged the Departments to simplify the IDR process by finalizing the proposed rules regarding batching and not limiting the number of claims that can be batched.

The Congressmembers’ letter is available here.