Problematic Changes in Payer Behavior Have Also Intensified the Negative Impact on Physicians, Resulting in an Overwhelming Current of Payment Disputes

When the NSA was established, many physicians believed this new law would have only a limited impact due to its specific focus on OON medical services. But, when the law went into effect, physicians noticed an abrupt change in payer behavior. Many insurance payers lost interest in maintaining in-network status. Some payers sent cancellation letters to physicians in their network, while others walked away from active in-network negotiations altogether.

This was a curious shift in payer behavior, but not surprising when you consider the lower payments, favorable rules, and lack of enforcement that payers could enjoy with OON claims under the NSA.

A recent EDPMA study on payer behavior found that post-NSA OON payments decreased by an average of 32% compared to pre-NSA OON payments for clinically identical services. Data also shows that payers routinely fail to comply with QPA disclosure requirements and often ignore claims in the open negotiation period.

These hardball tactics have pushed more physicians into OON status, leading to an avalanche of payment disputes that quickly overwhelmed the IDR system.

The Absence of Regulatory Enforcement Has Resulted in a Pattern of Payer Non-Compliance

In April 2022, regulators anticipated that about 22,000 disputes would be filed under the Federal IDR process. But the tri-agencies reported that more than 490,000 disputes were filed between April 2022 and June 2023 (with about 61% of those disputes remaining unresolved by December 2023).

IDR entities simply can’t keep up, and a massive backlog has continued to build as they struggle with the volume and complexity of these payment disputes—especially as regulators have continue to fumble their guidance for the IDR process.

Payer non-compliance also seems to run rampant in the IDR process, with EDPMA data showing that in the NSA’s first year, 75 percent of payers failed to make an actionable offer during IDR, while 87 percent of payers failed to pay in accordance with their IDR rulings. These trends were also persistent in a recent report from the Government Accountability Office (GAO), which reported that non-payments were the biggest reason for complaints during their audit period.

The Effect of These NSA Regulations and Payer Non-Compliance is Particularly Harmful to the Practice of Emergency Medicine

Emergency departments are especially impacted by these NSA regulations. Emergency physicians are already adjusting to shrinking Medicare reimbursement and the loss of public health emergency funding, and the growing trend of hospital boarders that has led to fewer available emergency department beds and more patients leaving without being seen by a physician.