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It’s No Surprise the No Surprise Act is Under Attack

Updated: Apr 12, 2022

gavel and stethescope

We recently wrote about the No Surprises Act (NSA) which impacts anyone paying bills for healthcare and went into effect at the start of 2022.(1-3) We concluded that post stating, “Undoubtedly, there will be challenges, a myriad of loopholes that will be exploited (and need to be closed), and changes to be made, but it is a great first step.(1)” In fact, the challenges are coming fast already.

The No Surprises Act is part of the Consolidated Appropriations Act of 2021 and is intended to eliminate a most “surprise” medical bills that often occur in emergency situations (were planning for in-network is feasible) or even some providers involved in procedures at in-network facilities (often radiologists and anesthesiologists).

No Surprise, Times 2

True to its name, it was also no surprise that just before the law went into effect and subsequently, challenges and carve-outs are occurring.

Important Exceptions Both Good and Bad

Again, referring to our previous blog, we noted that the CMS website indicates a prior immunity from these types of bills: “You’re already protected against surprise medical billing if you have coverage through Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE.(1)

A big, exempted provider is “road” ambulance service. “Ambulances have the highest out-of-network billing rate of any medical specialty, meaning most rides can result in a surprise bill.(4)” Even those branded as being part of a hospital system can be out-of-network because many are subcontracted providers and therefore are often exempt. However, air ambulances are covered under the ban. This inclusion is significant since their baseline costs are already substantial relative to road ambulance service.

Katie Keith, of Health Affairs, a leading peer-reviewed journal of health policy thought and research, noted that in December there were already two legal challenges to the then-pending legislation.(5,6) Since the NSA became law, she reports that the number has increased to six.(6) Just some of the current litigants are:

  1. Texas Medical Association (TMA) and a Texas-based emergency room physician in the eastern district of Texas (October 2021) (5,7)

  2. The Association of Air Medical Services (AAMS) was filed in the District of Columbia (mid-November 2021)(5,7)

  3. “The American Hospital Association, AMA, Renown Health, UMass Memorial Health Care Inc. and two physicians based in North Carolina jointly filed suit against HHS, the Office of Personnel Management and the departments of Labor and Treasury…(6-8)

  4. The American Society of Anesthesiologists, American College of Emergency Physicians and American College of Radiology also filed suit against these departments.(9)

Additionally, the American Academy of Orthopaedic Surgeons (AAOS) along with nine national specialty medical societies, and sixteen state medical associations filed an amicus brief supporting the lawsuit led by the AMA.(10,11) You can read the document’s details, along with the entire list of cosigners here.

What It Means

The litigants in all these lawsuits represent a panoply of professional and lobbying associations, vested interests, and motives. Some even supported the NSA prior to its enactment but disagree with its implementation.  For now, be aware that although the law is in effect, revisions are certainly possible. Rulings on aspects challenging the act are expected as soon as May 2022.(5) We will keep an eye on further developments – both pro- or against consumers – in later blog posts and on our news site.

Another Way to Neutralize the Act

Typical for any newly implemented law, there are loopholes that will be exploited.  Kaiser Health News and NPR recently reported, as part of their “Bill of the Month” series which highlights egregious medical statements, one such example.(12)Expect more to come until these loopholes are addressed.For more detailed information related to the No Surprise Act’s coverage, or to discuss how to handle surprise billing in your current health plan, contact a Commonwealth Insurance Partners Benefits Advisor today.


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