Kim DelMonico

December 28, 2021

3 min
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AAOS challenges CMS over No Surprises Act implementation

This article originally appeared in Orthopedics This Week on December 28, 2021.

The American Association of Orthopaedic Surgeons (AAOS) has issued a letter which takes exception and raises the alarm regarding CMS’ proposed implementation of the Surprise Billing; Part II Interim Final Rule.

The rule takes effect January 1, 2022.

AAOS’ letter, which was signed by AAOS President Daniel Guy, M.D. on behalf of “over 34,000 orthopaedic surgeons and residents represented by the American Association of Orthopaedic Surgeons (AAOS), and the orthopaedic specialty and state orthopaedic societies that agreed to sign on.” was sent to the Centers for Medicare and Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure.

The letter, which offered support for patient protection, took strong exception to CMS’ implementation of the rule. “The AAOS is alarmed by the deviation from congressional intent as evidenced in the language of the Requirements Related to Surprise Billing Part II IFC [Interim Final Rule],”wrote Guy.

Specifically, Dr. Guy, while discussing the independent dispute resolution (IDR) process, emphasized that under the No Surprises Act, the arbiter must weigh several factors equally. CMS, however, grants commercial insurers a system that “will in practice tip the scale of disputes in their favor by making the insurer-formulated Qualifying Payment Amount (QPA)—calculated as the median in-network rate—the primary factor for consideration in IDR and the presumptive appropriate payment amount,” wrote Dr. Guy.

The letter also pointed out that most providers are out-of-network not because of their “unwillingness to negotiate for in-network contracts with insurers.” Instead, they are out-of-network because “insurers offer contracts at rates which are untenable to cover the true costs of care.”

Dr. Guy went on to state that this “rule creates an ad-hoc system of benchmarking that guarantees every patient in-network cost-sharing and in-network payment to physicians, while shutting physicians out of an IDR process that accounts for their work and expertise in a meaningful way.”

The letter called on the Departments of Health and Human Services, Labor, and Treasury to update the rule to “reflect the statutory language and intent of the law.” It emphasized that the update should ensure that the protections extend to both “patients’ access to care and the financial health of their physicians.”

Robin’s perspective

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