Marshall and Cassidy Lead Colleagues in Urging Administration to Implement Surprise Medical Billing Law According to Congressional Intent

(Washington, D.C., January 3, 2022) – U.S. Senators Roger Marshall, M.D. (KS) and Bill Cassidy, M.D. (R-LA) led a group of 24 Senate Republicans in urging the Biden administration to revise the recently released interim final rule (IFR) for the No Surprises Act, legislation that ends the practice of surprise medical billing by taking patients out of the middle and establishing a comprehensive independent dispute resolution process. The text of the legislation requires that all factors listed in the text be given equal weight to ensure a level playing field for all parties. However, the IFR ignores congressional intent and disrupts the level playing field by establishing the median in-network rate as the presumed rate.

The No Surprises Act passed as part of the Consolidated Appropriations Act of 2021 last December and is set to go into effect on January 1, 2022.

“With the passage of the No Surprises Act, Congress established an [independent dispute resolution] framework that took patients out of the middle while not tilting the scales in favor of one party over the other,” wrote the senators. “In no way does the statute privilege any one rate in the [independent dispute resolution] process, but rather establishes an open and robust dispute resolution process in which each factor is given equal weighting.”

“Unfortunately, the [interim final rule] that the departments released in September departs from this carefully crafted approach, putting almost exclusive emphasis on the median in-network rate,” continued the senators.

Marshall and Cassidy were joined by Senators Lisa Murkowski (R-AK), Marsha Blackburn (R-TN), Chuck Grassley (R-IA), Tommy Tuberville (R-AL), Cindy Hyde-Smith (R-MS), Kevin Cramer (R-ND), John Barrasso (R-WY), Jerry Moran (R-KS), Mike Braun (R-IN), Roger Wicker (R-MS), Lindsey Graham (R-SC), Rob Portman (R-OH), Mike Rounds (R-SD), John Hoeven (R-ND), Mitt Romney (R-UT), Thom Tillis (R-NC), John Boozman (R-AR), Joni Ernst (R-IA), Rand Paul (R-KY), Jim Risch (R-ID), Mike Crapo (R-ID), James Lankford (R-OK), Jim Inhofe (R-OK), and Todd Young (R-IN).

Read the full letter HERE or below.

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. 

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