Letter to Hon. Xavier Becerra, Secretary Dept. of Health and Human Services; Hon. Martin Wals, Secretary US Dept. of Labor; Hon. Janet Yellen, Secretary US Dept. of the Treasury - MARSHALL AND CASSIDY LEAD COLLEAGUES IN URGING ADMINISTRATION TO IMPLEMENT SURPRISE MEDICAL BILLING LAW ACCORDING TO CONGRESSIONAL INTENT

Letter

Dear Secretaries Becerra, Yellen, and Walsh,

We worked diligently to find a bipartisan and bicameral solution to end the practice of surprise medical billing, a process which took over 2 years and culminated in the passage of the No Surprises Act in December 2020. We write now to express concern regarding the independent dispute resolution (IDR) framework outlined in the interim final rule (IFR) released on September 30, entitled "Requirements Related to Surprise Billing: Part II" and ask that you amend it to align with the law that Congress passed.

According to the statute, in addition to the information brought forth by either party or requested by the arbiter and excluding billed charges and public payor information, these proceedings shall include consideration of:

The median in-network rates;
Provider training, experience, and quality of outcomes;
Market share of arbitration parties;
Patient acuity or complexity of the services;
Teaching status, case mix and scope of services of the facility; and
Demonstrations of previous good faith efforts to negotiate in-network rates and prior contract history between the two parties over the previous four years.
With the passage of the No Surprises Act, Congress established an IDR framework that took patients out of the middle while not tilting the scales in favor of one party over the other. In no way does the statute privilege any one rate in the IDR process, but rather establishes an open and robust dispute resolution process in which each factor is given equal weighting.

Unfortunately, the IFR that the departments released in September departs from this carefully crafted approach, putting almost exclusive emphasis on the median in-network rate. The IFR states that the IDR entity is only allowed to deviate from the median in-network rate when there is "credible information about additional circumstances [that] clearly demonstrates that the [median in-network rate] is materially different from the appropriate out-of-network rate,"

This was not a threshold established by Congress and is not reflected in statute.

We are very concerned that the outcome of this approach will be markedly like that of a benchmark payment in clustering all rates around the median-in network or below, a policy which Congress debated and ultimately rejected because of concerns it created around rural access and narrow networks. We have heard significant pushback from providers, hospitals and physicians alike, that the agencies' approach gives certain stakeholders too much control over the outcome of IDR in a manner that does not reflect the careful balance that we agreed to last December.

We urge you to revise the IFR released on September 30 to better reflect the law that Congress passed in developing a framework that protects patients while being fair to stakeholders.