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AHIP Surprise Medical Billing Amicus Brief Supports Health Care Affordability and Choice for Patients and Consumers

Press Release

Published Nov 16, 2022 • by AHIP

Plaintiffs in TMA v. HHS seek an unworkable process that will result in more expensive, complex arbitration that will diminish affordability and access for everyone

Washington, D.C. – November 16, 2022 – No one should ever face a surprise medical bill that can lead to financial ruin. Congress passed the No Surprises Act to protect millions of patients from surprise medical bills for services they could not choose at prices they could not afford. But certain provider groups continue to file litigation, attempting to chip away at the patient protections provided by Congress through the No Surprises Act.

AHIP is standing up for better affordability and access for patients. Today, AHIP filed an amicus brief in Texas Medical Association v. the Department of Health and Human Services (HHS), supporting the Administration’s approach to surprise medical bill arbitration. The lawsuit centers on the Administration’s Final Rule defining the independent dispute resolution (IDR) process, which includes a requirement that, in a payment dispute, arbitrators consider the qualifying payment amount (QPA) among the factors determining final payment. AHIP concludes that the Court should grant HHS’ cross-motion for summary judgment.

Here are the highlights.

Consumers Should Have Affordable Networks that Offer Choice

“AHIP’s members strive to reach agreements with health care providers to offer consumers affordable networks that provide choices in the delivery of quality medical care. When unable to secure network agreements before treatment is rendered, health insurance providers seek to negotiate reasonable out-of-network payments to prevent surprise medical bills and reduce costs for patients. But before the No Surprises Act, providers often leveraged their refusal to participate in networks to send patients excessive surprise bills and extract payments well above typical market rates.”

Plaintiffs’ amici have no basis to claim that the Final Rule will drive health insurance providers to slash rates and narrow networks. Networks are designed to provide affordable access to quality care and breadth of choice, not just cost. In fact, there are early signs of a beneficial trend, where the Act has furthered good faith network negotiations over reasonable rates. Because the Final Rule in some measure enhances IDR predictability, it should encourage such network-building, which ultimately benefits the patients who receive high-value, quality care.”

“Because the Final Rule does not anchor IDR decisions to the QPA, Plaintiffs’ amici’s sky-is-falling scenario starts from a false premise—that a virtual guarantee of QPA-centered IDR decisions will lead health insurance providers to cut physicians from their networks and refuse to contract for above-QPA rates. Ample evidence shows that health insurance providers regularly consider factors such as quality of care, breadth of choice, legal requirements for network adequacy, and market demand. … When building networks, the goal is to achieve the highest value for patients in terms of both cost and quality of care. In addition to helping improve the quality, affordability, and cost predictability of medical care for patients, networks also help ensure that medical providers do not have the ability to send surprise bills to patients.”

“While it remains too soon to assess broader trends, there are early signs that some providers that had previously opted to remain out of network are now entering into networks. Even a modest increase in IDR predictability under the Final Rule will encourage further network participation, by fostering negotiations around a shared understanding of the range of reasonable values for particular services.”

Plaintiffs Are Asking for an Unworkable Arbitration Process

“Given the size and structure of the IDR system, some regulatory guidance was critical. The sheer number of IDR disputes—which thus far exceeds the Departments’ predictions several times over—underscores the need for some sort of methodological consistency. That need is magnified by the many different decision-makers. Without some procedural guidelines—even basic ones, like weighting only credible and relevant information—the possibility of wildly disparate approaches would render the system wholly arbitrary. The Final Rule provides a modicum of procedural consistency, permitting IDR panels to consider everything submitted by the parties, while instructing them to give weight only to credible, relevant, and non-cumulative information in reaching a result.”

The overwhelming volume of IDR proceedings dwarfs the Departments’ initial estimates. In the first five and a half months of the IDR system, 90,000 proceedings were initiated.This is over four times the number of IDR proceedings projected for the entire first year. Annualizing this early data suggests nearly 200,000 IDR proceedings per year—ten times the projected volume.”

Further compounding the potential for significant uncertainty around IDR outcomes is the fact that thousands of IDR proceedings are being juggled by many different IDR decision-makers. Congress required IDR decisions to be made by private entities. … To date, thirteen different entities have been certified. Each entity is home to countless decision-makers. The involvement of so many disparate decision-makers cries out for guidance to ensure that IDR entities operate consistently on a nationwide basis in carrying out their statutory duties.”

The Qualifying Payment Amount Is Both a Transparent and Credible Measure

“The QPA’s credibility derives from its transparency and reliability. Far from being a ‘black box’ … health insurance providers must provide the QPA to physicians and other medical providers when making initial payments for out-of-network services. … They also must certify that the QPA was used as the basis for their beneficiary’s cost-sharing amount and that it was calculated in accordance with the rules. Moreover, health insurance providers must also make several additional disclosures if requested, including identifying any database used and explaining how non-fee-for-service contracted rates were addressed.”

“As for reliability, Congress established an audit process to ensure that the QPA is correctly calculated. A QPA audit may be conducted through a sampling process or as the result of a complaint—including complaints from physicians. ... If providers are concerned about QPA compliance, the audit process is the congressionally approved remedy. But contrary to Plaintiffs’ claim, there is no evidence of ‘widespread insurer noncompliance’.”

Read the amicus brief.

About AHIP

AHIP is the national association whose members provide health care coverage, services, and solutions to hundreds of millions of Americans every day. We are committed to market-based solutions and public-private partnerships that make health care better and coverage more affordable and accessible for everyone. Visit to learn how working together, we are Guiding Greater Health.