Congress of the United States

House of Representatives
Washington, DC 20515

May 19, 2022

The Honorable Xavier Becerra The Honorable Janet Yellen

Secretary Secretary
U.S. Department of Health and Human Services U.S. Department of the Treasury
200 Independence Avenue SW 1500 Pennsylvania Avenue NW
Washington, DC 20201 Washington, DC 20220

The Honorable Martin J. Walsh

Secretary
U.S. Department of Labor
200 Constitution Avenue NW
Washington, DC 20210

Dear Secretaries Becerra, Yellen, and Walsh,

We write to you regarding your Departments’ implementation of the No Surprises Act. As you
know, Congress worked for over two years to craft a solution to surprise medical billing that
protects patients while preserving a fair and level playing field between providers and payers.
With the enactment of the No Surprises Act, supporters of the law in Congress have been eager to
see the law’s provisions take effect, especially those which protect patients. While we are pleased
that implementation of the law is moving forward and that the independent dispute resolution
(IDR) process is being established, we are deeply concerned that the rules your Departments
have issued are disrupting the delicate balance that is integral to this law.

As you know, on February 23, 2022, the U.S. District Court for the Eastern District of Texas, in
the case of Texas Medical Association and Dr. Adam Corley v. U.S. Department of Health and
Human Services et al., ruled that the statutory text was not being followed in the implementation
of certain IDR provisions, specifically by unlawfully prioritizing the Qualifying Payment
Amount (QPA) ahead of other criteria that Congress included for consideration by arbiters in the
IDR process. As members of the House Committee on Education and Labor, one of the
committees of jurisdiction that helped craft this law, we urge you to promulgate a final rule to
implement the No Surprises Act consistent with the law that was passed by Congress and
confirmed by the District Court’s ruling.

Patients, providers, and payers deserve certainty on the IDR process. It is concerning that the
IDR process framework is being established without the guarantee that this process will be
conducted in accordance with statute and Congressional intent. Providers and payers must be
assured that the rules of the road for the IDR process are fair and will produce the balanced
outcomes Congress intended. It should not be used to implement a policy that Congress
specifically rejected in crafting the law. Both payers and providers have been clear about the
harm that could come if the delicate balance is upset, and one side is disincentivized to come to
the negotiating table. It could dramatically reduce reimbursement rates that underpin patient
access to care, making providing care in some areas non-viable, and cause further shortages of
needed medical specialties; it could also further increase health care costs. Patients need to have
the certainty that they will have access to providers in their community – and not face the
uncertainty of wondering if their local hospital or the doctors who work there will have enough
staff on call when they need care, or if the doors will be open at all.

Moreover, we have heard concerning reports that providers’ in-network status is changing because
of the law and the IDR process – that payers may be seeking to take advantage of undue leverage
given under a flawed implementation of the IDR process to push providers out-of-network,
knowing that they can use the IDR process to mandate an artificially below-market rate. Upsetting
existing in-network agreements was not the intention of Congress in passing the No Surprises Act.

In crafting the No Surprises Act, Congress had two main objectives: protect patients from
surprise medical bills and create a fair process to resolve out-of-network payment disputes
between payers and providers. While the lawsuit did not affect patent protections in the law, the
uncertainty around the rules and headlines related to the lawsuit, are affecting patients’
understanding of the law and muting the impact that this law should be having. Therefore, we
urge you to provide certainty on this matter and swiftly issue a final rule that aligns with the
court’s ruling and the law as written by specifying that the certified IDR entity should not default
to the median in-network rate and should instead consider all factors outlined in the statute
without disproportionately weighting one factor.

Thank you for your continued efforts on this important matter. Everyone involved in our
healthcare system deserves the assurances Congress intended to provide under the No Surprises
Act, and we hope that clarity will ensure the best outcomes for our patients.

Sincerely,

Joseph D. Morelle Mariannette J. Miller-Meeks, M.D.

Member of Congress Member of Congress