Becker's Hospital Review

20 EXECUTIVE BRIEFING 2 EXECUTIVE BRIEFING The No Surprises Act…FULL of surprises! A tectonic shift is threatening the stability of our healthcare system Randy Pilgrim, MD, FACEP, FAAFP, Enterprise Chief Medical Officer, SCP Health The implementation of the No Surprises Act (NSA) has caused a dramatic shift in the country's healthcare ecosystem, driving significant disruption, and threatening its stability. Despite the balanced language in the law passed by Congress, the law's actual implementation is driving a massive, unintended shift in the balance of power between payors and clinicians, causing dangerous disruption and risk. This is not just another chapter in a long narrative of healthcare changes. Combined with the realities of an already stressed industry, this will threaten our healthcare safety net until a permanent fix is implemented. The No Surprises Act was designed to deliver much- needed protections for patients. Congress intended to protect patients from unanticipated medical expenses after receiving care at hospitals in their insurance network. In addition, Congress wanted to bring clinicians and payors together over payment disputes using an Independent Dispute Resolution (IDR) process. The goals were clear: protect patients, drive more in- network agreements and where necessary, use a fair and balanced dispute resolution system that keeps patients out of the middle. Congress supported these noble goals and codified them into law. If implemented thoughtfully, this law would protect patients and ensure adequate resources for high-quality patient care. The implementation of the No Surprises Act (NSA) falls substantially short of the law's objectives. It is producing harmful consequences and creating a new crisis, while putting the nation's healthcare safety net at risk. Since 1987, the federal law called Emergency Medical Treatment and Labor Act (EMTALA) has required that patients be afforded access to medical evaluation and stabilization for significant medical conditions. For thirty-five years, EMTALA has provided a safe haven and universal, non-discriminatory access for patients who may have an emergency medical condition, regardless of their ability to pay. Providing clinical care under EMTALA requires significant resources. As the NSA is currently implemented, healthcare reimbursements have been slashed at a time when hospital subsidies are no longer available, and resources are now being diverted from clinical care required by EMTALA. Clinicians are being asked to do more with less on the heels of the pandemic, with unrelenting clinical demands. A new national crisis has been created, on top of widespread staffing shortages and growing patient needs. Unabated, this is on a pathway for irreparable damage to the healthcare system. The health system as we know it today will change and access will be limited if this path continues. How did we get into to such a morass? The rulemaking process behind the NSA, driven by unelected government departments, has fundamentally changed the spirit of the law, tipped the scales of fairness, and implemented the law very differently than was envisioned by Congress. Some provisions were so significantly skewed that a federal judge quickly reversed certain egregious provisions. Other lopsided rules remain, creating an imbalance of power and a watershed of economic gain for payors. The rulemaking process has left clinicians with independent dispute resolution as their only last-ditch lever - a slow, costly, and opaque process that is not binding on future payments or in-network negotiations. The IDR process has lengthy delays, with many cases put on hold with no explanation and no timely avenue for appeal. The healthcare safety net hangs in the balance and is being eviscerated with tremendous long-term risk. We could not be more surprised. And we should all be incredibly concerned. The regulations that implement the No Surprises Act are shifting enormous dollars to payors. Rather than the reduction in healthcare costs that were anticipated by the Congressional Budget Office over 10 years, payors have abruptly slashed out-of-network payments by as much as 50 percent, effectively ignoring prior payment history for clinically identical services. Letters from Cigna, CVS Health, and Blue Cross Blue Shield North Carolina, among others, cited the No Surprises Act as the impetus for ending contracts unless they received dramatic payment reductions. In addition, payors have stepped away from in-network negotiations, even cancelling existing in-network agreements. The Open Negotiation process provided in the law has been met with a "take it or leave it" approach, leaving clinicians

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