Surprise Billing Issues Still Not Settled

Surprise Billing Issues Still Not Settled

At the end of 2020, Congress passed the federal “No Surprises Act” as part of the end-of-the-year coronavirus relief legislation. The legislation bars surprise billing for out-of-network emergency care as well as out-of-network care provided at in-network facilities. It also institutes an arbitration system for insurers and the provider to negotiate payment.

TSCL actively supported ending the practice of surprise billing and while the legislation wasn’t perfect, we felt it was a good start.

While modifying the practice of surprise billing to include more financial safeguards will help protect Americans from unexpected costs after an illness or accident, the issue hasn't disappeared.

According to a report from, “… providers and insurers will continue their fight over surprise billing as federal officials figure out how to put the No Surprises Act into practice, according to experts.

“The new law protects consumers from receiving unexpected medical bills resulting from out-of-network emergency care delivered by an out-of-network facility or out-of-network providers at an in-network facility. It also blocks out-of-network providers at in-network facilities from balance billing patients for non-emergency care unless they get patient consent. But patients will still be responsible for paying the in-network cost-sharing amount.”

However, there are still lots of details to work out and there will be fights over what those final details will be.

In the legislation that was passed Congress' decided to go with baseball-style arbitration to settle payment disputes between providers and insurers.

Now, policymakers must recruit entities to carry out the arbitration process and provide them with guidance about how to consider a range of factors during arbitration.

Again, from the report, “The No Surprises Act bans arbitrators from considering provider charges during the arbitration process. Congress had worried that healthcare costs would rise faster if providers' settlement amounts were significantly higher than the amounts insurers paid to in-network providers. The legislation also bars arbitrators from considering how much public payers like Medicare and Medicaid pay for comparable services. That's a win for providers since those payers often have much lower reimbursement rates than commercial plans.

“But lawmakers allowed arbitrators to mull over several other factors when making payment decisions, including the median in-network rate paid by an insurer, any good faith effort by a provider to join an insurer's network, providers' and insurers' market share, and previously contracted rates from the last four years, among other considerations. Congress left it up to HHS [Department of Health and Human Services] to figure out how to calculate qualified payment amounts, which are tied to the median in-network rates paid by insurers.”

The report concludes with this: “With the No Surprise Act set to take effect on Jan. 1, healthcare executives should expect HHS and other federal agencies to start issuing their proposed rules in the coming months. The details of those rules will significantly affect what cards they'll be able to play at the negotiating table.”