The Department of Health and Human Services is failing to implement the No Surprises Act — and that should be no surprise.
The No Surprises Act (NSA) was signed into law by President Trump in 2020 and was supposed to prevent 20 percent of emergency room visits and 16 percent in-network hospitalizations that resulted in patients being billed for out-of-network services.
However, under Health and Human Services Secretary Xavier Becerra, the NSA has been violated with impunity by insurance companies. Major reform — and perhaps a change of leadership at HHS — is needed for course correction.
Choosing a doctor or other healthcare provider that is within your insurance network normally protects patients from expensive medical bills. But when real emergencies strike, few patients are meticulously researching which hospitals and care providers are in-network from the back of an ambulance.
Before the No Surprises Act, patients could receive bills for medical services that were conducted by a provider outside the patient’s insurance network under “shared savings fees.” These additional fees are tacked on to bills for in-network services rendered by insurance companies. The NSA was supposed to put a stop to this practice, but its failed implementation has enabled widespread abuse.
When insurance companies are ordered to pick up the cost under the NSA’s independent dispute resolution — a process that allows a third party to settle disputes between insurers and providers without involving patients — patients have received bills with letters from insurance companies explaining that the NSA’s directive is “unenforceable” and “not binding.”
Becerra, who is responsible for ensuring that insurance companies comply with the NSA, has ignored the issue. In testimony before the House Ways and Means Committee, Becerra claimed that most of the arbitration requests submitted due to surprise bills were “frivolous,” but that’s simply untrue.
Complaints concerning surprise insurance bills have increased by 50 percent in some states. Some medical revenue directors have even gone to the press, complaining that insurers are refusing to pay awards through the independent dispute resolution. Nationally, 52 percent of patients did not receive arbitration-determined payments from insurers despite the fact that NSA has been law for over three years.
Since insurers are not being penalized for refusing to pay providers or patients under the NSA, payors have reduced the total amount of payments for out-of-network care by 32 percent. The District Court has had to order HHS to correctly implement the NSA to make sure insurers cannot game the system multiple times.
Lawsuits directed at HHS have shown that the department ignored the NSA and constructed a completely separate arbitration process. Complaints that insurers are converting arbitration awards into bills and passing them on to patients — informing patients and doctors that their cost responsibility is higher than what the provider is allowed to bill –– have not been addressed.
It’s not that the HHS is unable to resolve the arbitration process — it’s just unwilling to comply. According to the Center for Medicare and Medicaid Services, insurance providers prevailed in over 70 percent of all disputes under the NSA. But instead of addressing providers’ violations or speeding up the arbitration process, Becerra has chosen to pursue judicial appeals against the federal court that ordered him to implement the NSA correctly.
The failed implementation of the No Surprises Act threatens patients’ ability to access care, leading to more expensive and frequent surprise billing. Becerra should focus his efforts on ensuring HHS implements the No Surprises Act according to enacted federal law.
