The No Surprises Act (NSA) Implementation Woes: A Struggle for Balance and Fairness


The federal ban on surprise medical billing, known as the No Surprises Act (NSA), was intended to protect patients from unexpected medical bills. However, since its implementation on January 1, 2022, the rollout of the NSA has faced challenges and delays. The Departments of Health and Human Services, Labor, and Treasury (Tri-agencies) have been grappling with implementing rules and regulations, leading to dysfunction. This blog examines the impact of the NSA, its effects on in-network contracts and physician reimbursement, and the controversies surrounding the independent dispute resolution (IDR) process.

Protecting Patients from Surprise Medical Bills:

Before the NSA, a prevalent example of surprise medical billing involved situations where an out-of-network (OON) specialist conducted an emergency procedure at an in-network facility. In such scenarios, patients would encounter unanticipated expenses due to the higher fees associated with out-of-network care. The NSA aimed to tackle this problem by mandating that patients' cost-sharing amounts for out-of-network services be equivalent to those for in-network services. This provision compels physicians to accept reduced payments or necessitates health plans to cover the remaining balance of out-of-network services.

Independent Dispute Resolution (IDR) Process:

In cases where payment disputes arise between payers and physicians, the NSA establishes a mechanism for resolution known as the IDR process. If the parties involved are unable to reach an agreement during the negotiation period, the physician can elect to submit the case for a third-party ruling. Within the IDR process, each party presents a final payment offer supported by pertinent information, and an arbiter is responsible for selecting one of the two offers.

However, there are many concerns surrounding the utilization of the Qualifying Payment Amount (QPA) in the IDR process. Critics argue that the QPA, which serves as a benchmark for determining reimbursement rates, may not accurately reflect the fair market value of services. These concerns highlight the need for careful examination and potential refinement of the QPA metric to ensure a just and equitable resolution of payment disputes.

Controversies Surrounding the Qualifying Payment Amount (QPA):

The QPA, established under the NSA, serves two purposes: calculating patient cost-sharing amounts and acting as a factor considered by the arbiter during IDR. However, experts quickly recognized that the QPA's calculation method would result in artificially low values that do not reflect actual market rates. Despite this concern, the QPA became a contentious benchmark when the Tri-agencies published their second interim final rule. The rule instructed arbiters to presume that the QPA is the appropriate payment amount, which led to criticism from the physician community. Physicians argued that the law intended all factors to be considered equally, without preference for the QPA.

Legal Challenges and Ongoing Litigation:

The Texas Medical Association (TMA) has actively challenged aspects of the NSA and IDR process through multiple lawsuits. In TMA I, a Texas federal judge ruled in favor of TMA, forcing regulators to remove questionable language from the Final Rule. TMA II challenged the Final Rule's continued favoritism toward insurance payers, resulting in a federal judge ruling in favor of TMA and temporarily pausing all IDR determinations. TMA III is an ongoing lawsuit focusing on calculating the QPA, while TMA IV challenges the increased IDR fees and restrictions on claim batching.

Real-World Impact on Emergency Departments:

A study by the Emergency Department Practice Management Association (EDPMA) analyzed outstanding emergency department claims related to the NSA. The study revealed alarming statistics: a lack of payer response, unadjudicated claims, delayed payments, and the cash-starving of emergency physician groups. These issues, compounded by the flawed implementation and backlogged IDR process, threaten the stability and functioning of emergency departments.

The Need for Congressional Action:

Physicians and healthcare organizations continue to urge Congress to address the challenges posed by the NSA's implementation. Of particular concern is the non-payment by insurance payers following IDR determinations. There are scheduled congressional hearings to discuss the implementation of the NSA, providing an opportunity for lawmakers to address systemic issues and restore balance and fairness to the system.


The implementation of the No Surprises Act has been marked by dysfunction and delays, especially in the independent dispute resolution process and controversies surrounding the Qualifying Payment Amount. These challenges disrupt in-network contracts and impact emergency departments, highlighting the need for urgent action to restore balance, fairness, and stability in the healthcare system. Congress must address these issues and prioritize the creation of an effective and patient-centered healthcare system that protects individuals from surprise medical bills.

Disclaimer: This blog post is for informational purposes only and should not be considered legal or medical advice. Consult with a qualified professional for guidance on specific situations.

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