NSA – The Nightmares Continue
The healthcare cost savings promised by the No Surprises Act still haven’t materialized.
This is despite another year of data, more implementation experience and additional guidance from federally appointed arbitrators.
The NSA nightmares we outlined a year ago persist, and there’s little advocacy for those bearing the actual costs.
Providers continue to flood the Independent Dispute Resolution process. The most recent data from the Centers for Medicare & Medicaid Services indicates a 40% year-over-year increase in filings. Why? Because it’s demonstrably good for their business: The initiating party wins disputes 88% of the time — a four-point increase compared to a year ago, making the situation even more inequitable and egregious.
Now, there’s a new battlefront.
‘Additional Factors’ Add Risk and Subjectivity
The NSA initially required the arbitrators — the Independent Dispute Resolution Entities — to rely on the Qualifying Payment Amount when issuing determinations absent evidence. After a legal challenge in Texas, the rules shifted to allow consideration of “additional factors.” While the QPA remains primary, IDREs may also weigh:
- The training, experience and quality of the provider
- Market share of the provider and plan
- Patient acuity and complexity
- Teaching status and case mix of the facility
- Demonstration of good faith
- Prior contracting history
These additional factors should not statistically occur in most cases, and determination rates should align more closely with the QPAs. However, we’re seeing quite the opposite.
An April 2026 final determination involving an ankle injury illustrates the problem. Buried in its rationale, the IDRE included this catchall:
“Based on the information submitted, including the Qualifying Payment Amount …”
It appears the determination hinged on the provider’s training and “the complexity of the emergency room services,” including performing vital checks; conducting a physical examination; administering X-rays; supplying crutches; and splinting to alleviate ankle pain.
If routine ankle care is considered complex, perhaps both the provider and the arbitrator need additional training.
Sarcasm aside, it’s incredibly difficult for the payor in a dispute resolution to contest a provider’s “quality” or alleged complexity during negotiation or in a final-offer submission. IDREs appear to be giving significant weight to these additional factors — even in routine cases. This may be excusable with modest sums, but what happens with a $100,000 claim? If you’re not the initiating party, the financial results of losing 88% of the time can be staggering.
An Opaque System Begging for Reform
What was meant to be an efficient, affordable way to resolve payment disputes — without burdening patients or the courts — has instead created its own financial crisis. Because eligible disputes can range from modest to enormous, health plans face high-stakes exposure with little practical recourse after a determination.
That recourse is urgently needed.
So far, proposed legislation has emphasized enforcing determinations without accountability for whether they’re correct. Payors generally cannot appeal. Submissions aren’t exchanged; there’s no meaningful opportunity to question or rebut evidence; and the arbitrator’s templated determination typically lacks detail.
Today, a health plan could be issued with a binding determination for more than $100,000 — after no more than a 15-minute review. The payor’s only option is to file a complaint with CMS. Under the proposed legislation, the payor’s only option would be to avoid a monetary penalty by paying $100,000 within 30 days of the determination.
As a reminder, the NSA was initially passed to address out-of-network providers that, by design, did not join the network environment in order to drive higher reimbursements (most commonly in the areas of anesthesia, pathology and radiology). While the NSA hoped to change this behavior, these same providers continue to remain non-contracted and have recognized the advantages they are receiving through the IDR process to maintain higher revenues. As a result, utilizing a traditional network will not reduce this financial exposure to an employer-sponsored plan.
A Small-Claims Model and 3 Paths to Reform
We can take inspiration from state courts when it comes to swift arbitration for low-dollar claims: States enable a “rocket docket” of small claims to be tried faster with leaner bureaucracy, while more expensive disputes get a more robust process — providing full opportunity to both parties to weigh in with an amount of evidence proportional to the case.
In no other industry would massive liabilities be imposed without basic safeguards to ensure decisions follow the evidence and the law. The IDR process has been churning away for two years, and the consequence is serious harm to employers — often without their visibility into how the outcome was decided.
Here are three ways to make the process fair and more defensible:
- Keep the current system but add a dollar threshold. With the opportunity to break up claims by line, there would need to be scrutiny to avoid manipulation of thresholds. Dispute limits could align more with state small-claims thresholds (or lower), considering how little time may be spent reviewing and determining these claims.
- Create a second tier for high-dollar claims. The cost of engaging in these disputes would need to be increased, but so should the time, resources and evidence before a determination is issued. With a more robust record, an appeals path could better mirror traditional arbitration.
- Limit IDR to low-dollar claims only. For high-dollar claims, required traditional litigation is paired with a mandatory negotiation period as an exhaustion requirement prior to filing.
What Employers Need Right Now: Steady, Transparent Advocacy
Until meaningful reform of IDR becomes reality, employers and brokers are still living with the consequences of a system that too often feels stacked against them. At ClaimDOC, we see that pressure up close — and we take seriously what it means to stand with our clients when the rules feel unclear and the stakes are high.
Our role is to reduce surprises wherever we can: we set expectations early, translate the jargon, and explain what we can (and cannot) control.
This is how a vendor cares about their clients. We meet deadlines, build defensible offers, challenge ineligible claims, and follow through after a determination. And because the steps after a determination are often the most confusing (and most consequential) we put extra emphasis on transparency when it matters most.
We make sure a few things are always explicit:
- We explain when the CMS complaint process applies, what it can accomplish, and which outcomes are realistic.
- We challenge eligibility where possible and share our rationale.
- When a determination triggers significant reprocessing or payment, we notify the employer.
As vendors, we must be rigorous without losing sight of the humans affected by these outcomes. We work to limit our clients’ exposure, keep fiduciary awareness of plan performance front and center, and communicate in plain language — especially when the process doesn’t.
As an industry, we must keep pushing for lasting IDR reform.
Meanwhile, we will continue doing the day-to-day work of bringing as much fairness, consistency and accountability as we can to a defective system.