Surprise! ACEP sues the federal government over implementation of no surprises act. 

We thought the end of 2020 brought an end our multi year battle over out-of-network (OON) billing through Congressional passage of the No Surprises Act. ACEP considered it a solid win that this comprehensive bill to ban balance billing for OON care was coupled with a fair independent dispute resolution (IDR) process to ensure clinicians and facilities are paid appropriately for OON services delivered.

The language of the No Surprises Act laid a clear path for the regulatory phase of the implementation process, giving federal agencies a little over a year to act before the requirements took effect in 2022. Even before federal agencies issued any regulations, ACEP and other partners submitted letters and met with administration officials to discuss key policy and operational aspects of the law and provide recommendations on how to appropriately implement them. In mid-2021, we saw some of our efforts come to fruition.

On July 1, federal agencies released the first interim final rule (IFR) implementing the law, which included strong language endorsed by ACEP that enforces the prudent layperson standard. The rule states that denying emergency coverage based on a retroactive review of diagnosis codes is inconsistent with the emergency services requirements of the No Surprises Act and the Affordable Care Act. This win was the result of our past federal and state level advocacy efforts on the prudent layperson standard—as part of the rationale for including the policy, the rule specifically refers to ACEP’s lawsuit against Blue Cross & Blue Shield of Georgia.

Unfortunately, federal agencies chose to ignore most of the other major policy recommendations that ACEP and the broad- er physician community made. When the second IFR for the No Surprises Act was released at the end of September 2021, ACEP and many other groups involved were shocked to see that it went against congressional intent by undoing key components of the No Surprises Act’s IDR provisions.

ACEP and many others worked hard with Congress to ensure a final bill that protects patients from surprise bills while pro- viding a robust IDR process. The purpose of IDR is to facilitate a fair interaction between parties once patients are out of the middle of billing disputes. However, the second IFR did the

opposite: by requiring arbiters to greatly prioritize the artificially-low Qualified Payment Amount (essentially the median in-network rate) set by insurance companies it undermines the entire IDR process in the bill. This flawed regulation is expected to encourage insurance companies to narrow their networks even further, making it harder for patients to get emergency care, particularly in small or rural communities. We are already seeing this playing out since the rule’s release, with some health plans unilaterally canceling long-standing contracts with emergency physician groups and pushing them out of network.