A newly published Brookings Institution databook tracking outcomes under the No Surprises Act’s independent dispute resolution process reveals that providers are winning big in arbitration — and that the law may be pushing reimbursement up, not down.
The publication analyzes CMS dispute data covering all of 2023. The analysis covers three categories of professional services — emergency care, imaging, and neonatal/pediatric critical care — and examines IDR decisions, provider and insurer offers, and qualifying payment amounts, all expressed as multiples of Medicare rates.
Here’s seven takeaways from the report that ASC leaders need to know:
1. Providers are winning arbitration at least 80% of the time. Under the IDR process, providers submit offers and insurers submit offers — and an arbitrator picks one. Providers have been prevailing at least four-fifths of the time, according to Brookings’ analysis of CMS dispute data. Insurers, meanwhile, are submitting offers only slightly above the qualifying payment amount, while providers are submitting significantly higher figures.
2. IDR decisions are running more than 4x Medicare for emergency services. For emergency care, the mean price emerging from IDR during the second half of 2023 was 4.0 times what Medicare would pay for the same service. That compares to pre-NSA mean in-network commercial prices, which ranged from roughly 2.6 to 3.0 times Medicare — meaning IDR is producing payments well above what providers were historically collecting in-network.
3. Imaging arbitration outcomes are even higher — and climbing. For imaging services, IDR decisions averaged 6.6 times Medicare rates in the second half of 2023, up sharply from 5.0 times Medicare in the first half of the year. Pre-NSA in-network mean prices for similar imaging services ranged from 1.9 to 2.5 times Medicare — making the gap between IDR outcomes and historical in-network rates particularly stark for a service line central to ASC operations.
4. QPAs are significantly lower than historical in-network rates. The qualifying payment amount — the insurer-calculated median of contracted rates used as the IDR benchmark — is running more than 30% below adjusted estimates of pre-NSA mean in-network prices for both emergency and imaging services. That gap is larger than researchers expected, and larger than prior comparisons of mean vs. median in-network rates would predict. Whether this reflects insurer calculation errors, the QPA’s contract-weighting methodology, or selection effects remains debated.
5. IDR prices look more like historical out-of-network rates than in-network rates. The Brookings researchers note that IDR outcomes are much closer to what insurers historically paid for out-of-network care than to in-network prices. For emergency services, prior out-of-network allowed amounts ranged from 3.9 to 4.7 times Medicare; for imaging, 2.9 to 3.3 times Medicare. In imaging, IDR decisions are now running above those historical out-of-network benchmarks.
6. A handful of large, investor-backed groups are driving the majority of IDR disputes. Practices affiliated with just four companies — TeamHealth, SCP Health, Envision Healthcare, and Radiology Partners — generated 74% of the line items in Brookings’ analyzed sample. These large, PE-affiliated groups have the scale to assemble strong arbitration cases and historically negotiated above-average rates.
7. The law may be raising premiums, not lowering them. The Congressional Budget Office had projected that IDR outcomes would fall close to the QPA, which would have kept prices near or below prior in-network rates. That has not happened. The Brookings researchers now say they see “little chance” the law will meaningfully reduce prices and premiums as CBO predicted, and describe it as a “realistic possibility” that the NSA will actually raise in-network prices and premiums.
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