Status Update: ACEP Actions to Push Back Against Flawed No Surprises Act Regulation

As you may recall, I went into depth in a Regs & Eggs blog in early October breaking down the significantly flawed second interim final regulation implementing the No Surprises Act. Now, a month and a half after the reg was initially released, ACEP remains as concerned as ever that the policy to require arbiters to consider the qualifying payment amount (QPA) as the primary factor in the independent dispute resolution (IDR) process will drive payment rates lower and encourage insurance companies to narrow their networks even further. We also believe that the policy is inconsistent with the legislation passed by Congress that was intended to create a fair and unbiased process to resolve billing disputes.

ACEP has made it one of our top advocacy priorities to push back against the reg and request that the Biden Administration immediately modify the IDR process. Our advocacy has come in a number of different forms, so I wanted to provide you with an update (via a handy timeline) of what we have done thus far.

• September 30: The Departments of Health and Human Services (HHS), Labor, and Treasury (collectively referred to as “the Departments”) released the infamous second interim final reg implementing the No Surprises Act (it was officially published in the Federal Register on October 7).
• October 1: ACEP immediately issued a press release expressing our profound disappointment with the reg, stating that it is entirely inconsistent with Congressional intent and could threaten the viability of physician practices and makes it harder for emergency physicians to care for patients, particularly in small or rural communities. We called on the Administration to enact the changes necessary to make sure the No Surprises Act is implemented as intended.
• October 7: Former ACEP President, Dr. Mark Rosenberg, sent an email to all ACEP members alerting them to the reg and asking them to contact their U.S. Senators and U.S. House member and tell them to request that the Departments make changes to the IDR process.
• October 14: ACEP held a Surprise Billing Member Town Hall for members to learn more about the reg and our advocacy efforts. Click here to watch the recording.
• October 15: ACEP participated in a meeting with the Administrator of the Centers for Medicare & Medicaid Services (CMS), other senior CMS officials, and key staff from the Departments of Labor and Treasury to discuss our concerns with the reg. ACEP helped organize the meeting and was joined by other medical societies and hospital organizations.
• October 22: Rosenberg sent another message to ACEP members alerting them to a dear colleague letter in the U.S. House of Representatives led by Rep. Tom Suozzi (D-NY) and Rep. Brad Wenstrup (R-OH) and requesting that ACEP members contact their representatives to ask them to sign on. The letter, which later was also co-sponsored by Raul Ruiz, MD (D-CA) and Larry Bucshon, MD (R-IN), was addressed to HHS Secretary Becerra, Labor Secretary Walsh, and Treasury Secretary Yellen. It requested that the Departments follow the letter of the law and amend the IDR section of the reg. ACEP repeatedly sent out action alerts about this dear colleague letter and spread the word throughout our annual conference in Boston that ran from October 23 to October 27.
• October 28: The Texas Medical Association (TMA) filed a lawsuit against the Biden Administration. ACEP issued a statement on October 30 that stated that we were in alignment with TMA’s disappointment and frustration about the way the IDR process was structured. We also stated that we were exploring all avenues to push back against this potentially devastating policy.
• November 5: Tom Suozzi (D-NY), Brad Wenstrup, DPM (R-OH), Raul Ruiz, MD (D-CA), and Larry Bucshon, MD (R-IN) sent the final dear colleague letter to the HHS, Labor, and Treasury Secretaries. The letter wound up being cosigned by 152 bipartisan members of the House of Representatives - more than 1/3 of the entire chamber! As a result of all the action alerts we sent out to ACEP members, a total of 2,540 ACEP members sent 5,297 messages to Congress asking House members to sign the letter!
• November 5: ACEP sent out a survey to ACEP members to collect data around insurer contract changes. We are already aware, since the publication of the reg, that numerous physician practices have received termination/modification notices from health plans for long-standing in-network agreements, including agreements that currently protect patients in rural and underserved communities. We are collecting examples that we can potentially share (removing any proprietary information) with the Departments. Please click here to complete the survey.
• November 11: ACEP and the Emergency Department Practice Management Association (EDPMA) submitted an initial response to the reg. The initial response focuses solely on the flawed IDR process. We specifically requested that the Departments revise the reg and issue immediate guidance to give arbiters the discretion to consider all the allowable and relevant information submitted by the parties to determine a fair out-of-network payment to physicians, without creating a presumption that directs IDR entities to consider the offer closest to the QPA as the appropriate payment amount. ACEP and EDPMA also make it clear in the letter that our request for the Departments to modify the reg would NOT delay the implementation of the critical patient protections embedded in the No Surprises Act. We will submit a longer letter in the coming weeks responding to all the policies in the reg. However, by submitting an initial response first, our main request for the Departments to immediately modify the IDR process is now officially on record.

While those actions may seem like a lot, we still have a lot of work to do. Unfortunately, the Administration is pretty dug in on their approach to the IDR process, and there are vocal interest groups, think tanks, and some members of Congress that strongly support it.

Besides the longer letter that we and EDPMA plan on writing to the Departments on the reg (comments on the reg are due on December 6), we also are continually working with the broader physician community to assess our legislative, legal, and regulatory options. In the coming days, the American Medical Association (AMA) plans to send a sign-on letter (which ACEP signed onto) to the Departments making the same request for them to modify the IDR process. I expect that the letter will be signed by dozens of physician organizations. There will definitely be more actions we will take before this policy becomes effective on January 1, 2022, and I will keep you apprised on all of them going forward!

Before concluding, I have a quick programming note. There will be no Regs & Eggs next week (Happy Thanksgiving!!). It will return in full swing the following Thursday, December 2nd. Until then, this is Jeffrey saying, enjoy reading regs with your eggs.