ASPS supports lawsuit to stop regulatory overreach in No Surprises Act implementation

On Jan. 10, ASPS joined seven national medical societies, 16 state medical societies and the Physicians Advocacy Institute in filing an amicus curiae brief supporting the American Medical Association/American Hospital Association's lawsuit challenging a key aspect of the 2020 federal out-of-network billing reform legislation, also known as the No Surprises Act (NSA).

The NSA outlines a process for physicians and payers to arbitrate disputes over payments for out-of-network services that uses clear, technically precise legislative language to ensure that a number of factors are considered by arbiters when evaluating each side of a dispute's proposal for appropriate payment. Although not ideal – ASPS opposed the NSA – the legislation as written at least allowed for a balanced consideration of all the factors, several of which allow for case complexity and provider skill.

However, federal regulators issued a rule in September that directly and dramatically changes the already unlevel playing field, tipping it even more in the favor of insurance companies. The regulators instructed arbiters to presume that one factor above all – insurance companies' self-determined median in-network rate – be considered the most appropriate representation of fair payment when evaluating the two parties' rates.

The amicus brief advances the core tenet of the lawsuit: that the actions of the regulators clearly go beyond their legal authority, and that in doing so, regulators are dramatically changing the underlying law to be even further in favor of the for-profit health insurance industry, further inviting private equity interests into healthcare delivery – all at the further expense of doctors and patients.

Those concerns are also core to the other ongoing actions ASPS is taking to fix the NSA through congressional action and communicate the coming negative effects if no fix is enacted. Those two approaches will be critical, regardless of the outcome of the AMA/AHA lawsuit, because federal fiscal and economic modeling demonstrates that the NSA will create a network contracting environment wherein insurance companies have no incentive to contract with or retain contracts with any provider above a company's median in-network rate. The ultimate impact of that is reduced network adequacy, which harms patients.

ASPS continues to lobby Congress to fix the NSA and will support the ongoing legal effort to stop the implementation of inappropriate regulatory requirements. For more information about NSA requirements and how the law will impact your practice, see ASPS's webpage dedicated to the law.