4 Ways to Improve the No Surprises Act
By Jarrod Fowler, MHA FMA Director of Health Care Policy and Innovation

As reported in last week’s FMA News , a federal district judge granted physicians relief in a lawsuit challenging the arbitration system under the No Surprises Act (NSA). There is hope that this preliminary victory will pave the way for more physician-friendly rulings as various lawsuits against the legislation work their way through the courts. However, instead of the court system being a backstop to address various aspects of the law and its implementation, Congress could enact some relatively small changes that would go a long way toward making the NSA a more level playing field. Ideally, the entire law would be rewritten to conform with the principles laid out by the FMA and other medical societies concerning out of-network care. That said, a total “repeal and replace” of the NSA seems unlikely. This article will focus on a few straightforward ways the NSA could be enhanced for the benefit of patients and physicians.

1. Reclarify that the intent of the law is to create a balanced arbitration system.
As the courts have determined thus far, the rules implementing the NSA do not comport with the intent of the legislation. Inexplicably, federal policymakers are demanding that the median in-network rate serve as the “presumptively reasonable” criterion for deciding how much money out-of-network providers should receive, even though the law enumerates several additional criteria for arbiters to consider. Lawmakers could immediately and definitively clarify that all criteria enumerated in the legislation – such as a case’s complexity, the market power of the parties involved in arbitration, and the contracting history, among others – be considered equally. This would end much of the ongoing, costly litigation surrounding the NSA. It also would allow the NSA to operate the way it was plainly written and intended by key proponents of the law’s passage.

2. Add explicit network adequacy standards, such as those tied to Medicare Advantage plans.
Conducting a study on this matter would be insufficient and unnecessary. Congress members know that network adequacy is crucial. Otherwise, such requirements would not exist under the Medicare Advantage program and elsewhere in the bodies of state and federal law that apply to our healthcare system. It is true from a cost standpoint that requiring insurance companies to abide by adequate networks standards would likely cause insurers to pay out more money. This, in turn, would lower the “savings” achievable under the bill, which are built on the backs of physicians, other practitioners, and facilities across the healthcare system. However, this is an unsound excuse for denying such a requirement under the law. Insurance plans are useless without adequate networks, and any requirement to have adequate networks must rest with the insurers’ themselves, ideally with regular compliance audits. With network adequacy requirements in place, physicians would not have to worry as much about overly narrow networks that lack critical primary or subspecialist care.

3. Properly define the ‘median in-network rate’ under the NSA.
The rules surrounding the NSA’s implementation currently require the median in-network rate to be calculated at the level of the group or legal entity that is contracted with the plan. But since some groups are significantly larger than others and larger groups typically receive greater pay under their contracts, this definition skews the median in-network rate towards a lower fee. A proper implementation of the law would require that the median in-network be calculated at the individual NPI/TIN number of each provider and weighted based on its individual utilization of various billing codes. Opposition to this change mainly boils down to some policymakers’ preference to lower costs by artificially deflating the median in-network value, so-defined as the Qualifying Payment Amount (QPA) under the NSA. A fairer implementation of the law would help to ensure that the United States can continue providing top-tier quality healthcare, which requires that reasonable expenditures – rather than artificially deflated ones – be paid for healthcare services duly rendered.

4. Listen to physicians.
While this doesn’t necessarily need to be enshrined in law, Congress members should regularly seek physician feedback on the NSA’s implementation as well as its effects on patient care and access. Physicians are a superb source of such information since they have their feet on the ground and can see how the law is affecting access, quality, consolidation, and other relevant matters. Failure to take physicians’ feedback seriously could allow the NSA to have detrimental effects across our healthcare system. Taken together, these changes would not eliminate every problem with the legislation. However, they would mark a substantial improvement and create a more level market for insurance companies, physicians, healthcare practitioners, and facilities to compete within.