A new Health Affairs analysis presents a distorted and incomplete picture of the independent dispute resolution (IDR) process.
The analysis relies on flawed assumptions, ignores insurers’ failure to comply with the No Surprises Act (NSA) and significantly inflates the estimated cost impact of the surprise billing dispute resolution process.
“This analysis relies on a payment benchmark that a federal appeals court has found unlawful, and it looks past insurers’ own role in driving claim volume and outcomes. The No Surprises Act must be enforced, not undermined,” said ACEP President L. Anthony Cirillo, MD, FACEP.
The QPA is not a reliable benchmark
The analysis treats the insurer-calculated Qualified Payment Amount (QPA) as a reliable proxy for expected in-network rates, which it is not. Authors acknowledge that QPA data are missing or suppressed in nearly one-quarter of disputes.
ACEP has long documented that QPAs are artificially low due to insurer manipulation, including the inclusion of “ghost rates” and proprietary methodologies that cannot be independently verified.
Further, the authors fail to acknowledge the Fifth Circuit Court of Appeals decision that the QPA methodology is unlawful.
Any assertion that the QPA can be an anchor for a national cost estimate — especially after a federal court invalidated the methodology — is fundamentally flawed.
Public Use File (PUF) data is flawed
The analysis significantly understates the extent of errors in the PUF data. The PUFs include data entry errors, including duplicative and misclassified disputes, incorrect offer and award amounts, and mismatched provider identifiers.
Billions of dollars indicated in the PUF files are result of data entry errors, including flawed calculations from what appears to be a phone number entered into the field for award amounts. Estimates show more than $6 billion in PUF awards data are either clerical errors or already accounted for before the IDR process.
Physicians are winning 85 % of the cases that make it through arbitration. But the analysis neglects to mention that in more than a third of cases, insurers are not submitting an offer or submitting initial offers of $0 - $1. Insurers are not participating in the process in good faith. Failure to submit reasonable offers is a major reason why insurers are losing IDR determinations.
No mention of widespread insurer non‑compliance with NSA
Authors conveniently neglect to mention the documented pattern of insurers failing to comply with current law. Insurers continue to:
- Offer initial payments far below historical contracted rates
- Miscalculate or suppress QPA values
- Challenge eligibility in 41% of disputes (as the article itself notes)
- Ignore open negotiation requirements
- Fail to pay owed amounts on time or at all after losing an IDR dispute
Ignoring these factors is to dismiss the fact that insurer actions drive up IDR volume and influence outcomes as they continue to underpay for emergency care and services.
Ignoring financial realities
IDR awards are not a driver of high costs. Authors never acknowledge that insurers continue to report record profits, multi‑billion‑dollar quarterly earnings, and increased executive compensation, even during the period of alleged IDR‑driven cost escalation.
While the NSA is successfully protecting patients from surprise bills, the analysis does not consider the financial strain on emergency physicians caused by the downward pressure insurers have placed on contracted rates since the NSA’s passage.
Emergency physicians are required by law to treat anyone, anytime. Emergency physicians continue to provide 24/7 access to care for all who seek it, despite eroding reimbursements from government and commercial payors, and the burden of uncompensated care.
We must address outliers without dismantling the system
ACEP acknowledges that outlier awards exist in IDR, and that these cases deserve increased transparency and targeted oversight. Reasonable reforms can address outliers without discarding the entire IDR process or dramatically weakening it based on insurer preferences.
Weakening the NSA would undo years of compromise and bipartisan work to protect patients.
Undoing the NSA would harm patients, destabilize emergency care, and reward a pattern of insurer underpayment for emergency care. Instead, solutions can focus on improving the efficiency and effectiveness of the implementation of the law as Congress intended.
ACEP strongly urges Congress to pass the bipartisan No Surprises Act Enforcement Act (H.R. 4710/S. 2420), legislation that strengthens enforcement of the No Surprises Act by holding insurers accountable when they fail to follow the law.
