HHS, CMS and the departments of Labor and Treasury finalized a rule May 28 overhauling the No Surprises Act’s independent dispute resolution process, instituting several changes aimed at increasing efficiency and transparency in a process that has been criticized by many physicians and healthcare leaders.
The rule formalizes the 30-business-day open negotiation period that precedes IDR filing. Going forward, parties must initiate that period through the federal portal, and the opposing party must submit a formal response by the 15th business day. Certified IDR entities must now complete eligibility determinations within five business days of being selected. The changes come after federal officials found that many parties were bypassing meaningful negotiation, with some open negotiation notices bundling thousands of items and services.
For some leaders, the reforms fall short of instituting lasting meaningful changes in the process, while others see the updates as part of a larger move towards stricter enforcement of the law.
Four leaders recently joined Becker’s to share their thoughts on how the new NSA rules will shape its enforcement and how that will impact physician practices moving forward.
Editor’s note: Responses have been lightly edited for clarity and length.
Question: The new rule requires good-faith negotiations before disputes enter arbitration — do you think insurers will actually comply, and what should happen when they don’t?
Adam Bruggeman, MD, CEO of Texas Spine Center (San Antonio): The requirement is the right policy direction. Independent physicians would rather resolve payment disputes through honest negotiation than spend months in arbitration. The question is whether good faith will have enforceable content or function as a procedural formality.
The good-faith and open negotiation provisions in the new rule take effect 90 days after the Departments issue implementing guidance, with the rule itself, effective Aug. 3. Getting that guidance right is the immediate priority, and that work needs to involve practicing physicians, not only payer representatives. The longer-term priority is passing the No Surprises Enforcement Act, HR 4710 and S 2420, as part of a year-end package. Without a legislative enforcement backstop, parties that choose to delay rather than negotiate in good faith will face no meaningful consequence for doing so.
Kimberly Cimino, PsyD. Chief Medical Officer of nMBL Group: Commercial insurers will only comply with the 15-business-day portal response window if noncompliance carries an immediate, automated and painful financial penalty. Right now, insurers ruthlessly exploit massive structural loopholes: They force patients into exhausting, multi-month internal corporate grievance loops and then deliberately slow-walk critical decisions by mailing physical letters via snail mail when they could easily communicate instantly and electronically.
This inherent bad faith is hardcoded directly into their underlying data infrastructure long before a No Surprises dispute even begins. I experienced this firsthand when establishing my own member account: The insurer’s portal placed an arbitrary structural limit on my data profile, cutting me off after I logged only a fraction of my clinical allergies because the company refuses to allocate the administrative resources required to manage high-acuity data. Worse still, they have weaponized these self-imposed constraints against me to deny coverage for vital, more expensive medications — claiming I have not exhausted the standard options on their corporate formulary while completely ignoring the documented, life-threatening allergies their own portal refused to let me log on. A corporate entity that has explicitly demonstrated a willingness to sidestep its fundamental administrative and clinical obligations — even in scenarios that mean life or death for a patient — will never voluntarily choose to negotiate in good faith. When exploiting systemic loopholes carries zero immediate consequence, insurers will predictably weaponize the IDR process as a default, cheap stalling mechanism for anything and everything they simply prefer not to pay.
This endless loop between government agencies, insurers, and providers functions as a perpetual game of hot potato. Absolute proof of this failure lies in the current corporate messaging celebrating the new IDR final rules as a “victory” for simply clearing backlogs and accelerating resolutions. In high-acuity healthcare, speed is not synonymous with justice. To force actual compliance, the regulatory infrastructure must be fundamentally divided into separate, specialized divisions. We need one generic lane to process routine billing discrepancies for generally healthy populations with low annual claims utilization, and a dedicated, high-touch agency designed specifically to audit the convoluted files of high-acuity patients who require extensive diagnostics and multi-systemic care. A speed-focused hourly employee skimming over a complex file will invariably skip vital clinical details to rule in favor of the Insurer or give up and kick the can to another agency.
John Hsieh, MD. Treasurer of the California Society of Anesthesiologists: Requiring good-faith negotiations before arbitration is a positive step, but enforcement will be challenging. The concept of “good-faith negotiation” is inherently subjective, making it difficult to measure and enforce consistently. Insurers have significant legal and administrative resources and may find ways to comply with the letter of the rule while avoiding its intent. If policymakers want this requirement to be effective, they should establish clear standards for compliance and meaningful consequences for parties that fail to engage in genuine negotiations.
William Rogers, MD. CMO at Applied Policy: I began in emergency medicine 45 years ago. All of us either worked for a hospital or were part of a local group of emergency physicians who staffed the emergency department at the local hospital. There were no mega groups, and Wall Street and private equity were focused elsewhere. Revenue had to be sufficient to provide the group members with a comfortable income, but no more than that. Those halcyon days are long gone. The focus now is on profit, and revenue is primarily intended to feed investors. By replacing emergency physicians with midlevel providers, aggressive coding, accepting interminable waiting times and setting unsafe expectations for throughput, the investors thrived.
Perhaps a decade ago, a new strategy emerged: refuse to contract with payors accepted by the hospital and balance bill patients. This cruel new strategy was one more factor that has made medical debt the primary cause of patient bankruptcy. When Congress passed the No Surprises Act (a pleasant surprise to me), I didn’t see it as a victory for the insurance companies; after all, they didn’t accept responsibility for out-of-network bills. I saw it as a victory for patients. It didn’t take long for the investors to figure out a workaround. The clever ones have flooded the arbitrators with hundreds or thousands of appeals, and for reasons I do not understand, the arbitrators are rewarding them with big payments. After 40 years, I have experienced all these changes personally. To spend my last clinical years at a Veterans Administration ED has given me some space, but there is nothing good happening in emergency medicine at present.
Insurers have always been understood as revenue-generating entities from which nobody expects charity, I understand and accept that. These investor-owned mega groups, anesthesia, radiology, emergency medicine are every bit as ruthless and bottom-line oriented the difference is that medicine is or should be perceived as fundamentally altruistic, the mega groups aren’t fighting the insurance companies on behalf of patients or of the physicians they employ, they are fighting to increase their wealth and I find it repulsive.