Critics warn new No Surprises Act rules give providers upper hand in disputes

Related: Feds mandate employer plan registration in No Surprises Act dispute resolution rule

Analysts at groups like America's Health Insurance Plans and the ERISA Industry Committee are still going through the final regulations. But "payers" are expressing disappointment about the lack of focus in the regulations, and the "preamble," or official introduction, on payer concerns.

The employer groups say the existing No Surprises Act independent dispute resolution system is siding with the providers involved in the claim disputes flowing through the system most of the time.

Employer groups also say that the "IDR entities" that handle the disputes are awarding the providers payments many times higher than what in-network providers usually get for the same services in the same markets.

Now, employer groups say, the final No Surprises Act regulations will help providers make even better deals by giving providers more information when the providers head into formal IDR proceedings.

Providers will have more information because of open negotiation period rule changes, employer groups say.

The No Surprises Act open negotiation period: The No Surprises Act is supposed to get insured patients out of the middle when providers and commercial payers fight over certain types of claim disputes.

The NSA dispute resolution system is available to many insured patients who end up seeing out-of-network doctors while in in-network hospitals, insured patients who get emergency care at out-of-network hospitals, and insured patients who use air ambulance services.

The NSA open negotiation period is supposed to be a 30-day period when providers try to resolve claim disputes through informal means, before the IDR entities take over.

The open negotiation period changes: The agencies that developed the new final No Surprises Act regulations — the U.S. Department of Health and Human Services' Centers for Medicare & Medicaid Services, the U.S. Department of Labor's Employee Benefits Security Administration and the U.S. Treasury Department's Internal Revenue Service — want to make the open negotiation period work better by having the parties slog through it on a new IDR Gateway claim fight administration platform.

All health insurers and self-insured employer health plans are supposed to register with the system and put in their contact information.

Parties are supposed to start any NSA claim fights by providing written notices through the IDR Gateway system.

The notice is supposed to include identification information for the provider and the payer, information about the item or service that the patient received and the initial payment amount.

The notice is also supposed to provide the "qualifying payment amount," or the typical amount paid for the item or service in the market, information about the patient's cost-sharing bills, and an offer of an out-of-network rate for each item or service.

Officials ended up removing a requirement for the responding party to include a counteroffer for the payment amount in a response notice.

The open negotiation period notice changes impact: Officials said the new notices will help the parties and IDR entities determine whether the providers or plans have made obvious billing or claim processing errors.

Eliminating the need for the responding party to make a counteroffer will help the parties negotiate better deals, officials said.

But insurers and plans have argued that the need for plans to include qualifying payment amounts and initial payment offers will increase the burden on the plans and give providers more information.

"Sharing additional information before IDR initiation would decrease the overall cost to providers of participating in the federal IDR process, particularly for eligible disputes, by smoothing information exchanges and making filing easier, and increase provider leverage in pre-IDR negotiations," according to the agencies' summary of the critics' arguments.