The No Surprises Act Protected Patients. Now It Must Work for Physicians, Too.

October 27, 2026
By: Greg Wertz, MS, CMPE, Director of Client Services

A promise to patients

When Congress passed the No Surprises Act in December 2020, it did something rare in health policy: it brought both parties together around a simple promise to patients. No one should open a bill weeks after an emergency and discover they owe thousands of dollars because an out-of-network physician happened to be on duty. The law ended surprise bills for emergency care, for care at in-network facilities and for air ambulance transport, and patients now pay only their in-network cost-sharing.

The second half of the promise mattered just as much. With patients out of the middle, physicians and insurers would settle payment between themselves. They would get 30 business days to negotiate, and if that failed, either side could take the claim to binding independent dispute resolution (IDR), where a neutral arbitrator chooses one side’s offer. The insurer would then have 30 days to pay. The intent was a fair referee and a balanced process. Patients got their protection. Nearly six years later, the referee is where the law has broken down.

Where reimbursement breaks down

From the physician’s side of the table, the problems start with the benchmark itself. The qualifying payment amount (QPA) is supposed to reflect the median in-network rate, and arbitrators weigh it heavily. But federal rules allowed insurers to count “ghost rates” for services never actually provided and to leave out bonus and incentive payments. On August 11, 2026, the full Fifth Circuit struck down both rules, finding they deflated the benchmark in insurers’ favor. Corrected QPAs are still not in place, so many disputes continue to start from a number the courts have called unlawful.

The negotiation meant to keep claims out of arbitration often never really happens. In 2025, insurers failed to participate and lost by default on 24.5% of IDR line items, and physician societies report offers as low as a dollar. When one side doesn’t show up, arbitration becomes the default rather than the last resort.

Most troubling, winning in IDR does not mean getting paid. Physicians prevail in more than 80% of decisions, yet collections tell a very different story. Radiology Associates of North Texas won roughly 95% of its disputes with one large payer and, as of May 2026, had collected about 2% of the balances it was awarded. An Emergency Department Practice Management Association survey found insurers failed to meet payment requirements in about half of cases, leaving roughly $245 million unpaid.

Why insurers hold the leverage

The law calls IDR decisions binding, but it never says what happens when an insurer ignores one, and the courts have read that silence narrowly. The Fifth Circuit held that providers have no private right to sue over unpaid awards, and the Supreme Court declined to review the case in January 2026. In September, the Second Circuit adopted the same reasoning, holding that awards are meant to be enforced by federal agencies rather than through lawsuits, while district courts in Maryland and Pennsylvania reached opposite conclusions this spring.

Regulators have not filled the gap. The May 2026 IDR Operations final rule made welcome changes, cutting the filing fee from $115 to $15 and expanding batching to 50 items, but the Departments declined to adopt monetary penalties or default judgments for insurers that don’t pay. That leaves physicians with a CMS complaint process that is badly backlogged: of the 39,999 complaints CMS received through 2025, 24,854 were still open.

The result is an uneven deal. A practice has to fund the dispute, win it and then chase the money, while an insurer that loses can simply wait with little to fear beyond a complaint. In that system, delay itself becomes the leverage.

What physician advocates are saying

Physician leaders argue the playing field was never level and that the answer is enforcement, not retreat. Responding on October 8 to a House proposal that would replace arbitration with insurer-set rates, Ryan Stanton, MD, president of the American College of Emergency Physicians, said: “Rewarding insurers for refusing to comply with the law is a misguided approach.” Dana Smetherman, MD, CEO of the American College of Radiology, pointed to what the arbitration record actually shows: “Independent arbiters routinely reject insurers’ unreasonably low payment offers.“

Those on the front lines of collections put it more bluntly. Dave Walker, chief revenue officer at Radiology Associates of North Texas, said: “The answer is not to weaken patient protections — the answer is enforcement.” Attorneys Adam Kotlar and Justin Cohen, who co-chair a No Surprises Act practice, argue the courts have now handed the problem back to lawmakers: “Congress must step up and amend the statute.“

The payer and employer perspective

Insurers and employers see a different problem, and parts of their case deserve a fair hearing. Dispute volume has far outpaced what anyone expected; the Fifth Circuit itself noted IDR filings ran about 84 times agency projections, with more than 5.1 million disputes submitted by January 2026. A Health Affairs study by Georgetown researchers estimated the process has cost Americans about $22.4 billion, including $2.7 billion in arbitration fees, and Academy of Health Information Professionals (AHIP) attributes much of it to a small number of private equity-backed groups and billing intermediaries.

Rep. Frank Pallone, a co-author of the law, cites data showing about 10 provider groups filed roughly two-thirds of 2025 disputes. Payers also argue that many disputes are ineligible, that some unpaid awards involve claims they contest, and that appellate courts are right to read the statute as sending enforcement to CMS by design. Physician groups respond that high award rates reflect artificially low benchmarks rather than gaming, and that disputes would fall if insurers contracted fairly. The honest answer is that both things can be true: some actors have pushed volume aggressively, and many insurers have used delay and lowball offers as strategy.

The goal: fair pay and working relationships

Arbitration was meant to be a last resort. It became the main channel because the steps before it stopped working, and the real goal should be a system where most claims never reach IDR at all. That starts with fair reimbursement and good-faith relationships between payers and providers.

The first step is to enforce the decisions that already exist. The bipartisan No Surprises Act Enforcement Act (H.R. 4710 / S. 2420) would penalize late payment after an IDR decision and give regulators clear authority, yet it has sat in committee since July 2025. Alongside it, QPAs should be recalculated to match the Fifth Circuit ruling, with the math made transparent to both sides, because an honest starting number shrinks the gap that drives disputes in the first place.

Open negotiation also needs to become real, with insurers required to engage, share eligibility data and respond to offers, since a conversation before arbitration is cheaper for everyone. And when rates reflect the market, physicians join networks, disputes fall and premiums benefit. That is the outcome patients, employers and physicians all want.

Scrapping arbitration in favor of insurer-set rates would remove the one check physicians have. Enforcing the law as written would restore the balance Congress intended. Patients got their protection; now let’s finish the job with fair pay for the care they receive.

What are you seeing in your IDR collections and payer negotiations? I’d welcome perspectives from both sides of the table.

Sources

• ACEP, ASA and ACR joint statement, Oct. 8, 2026
• AuntMinnie: ACR opposes bill to end NSA arbitration
• Radiology Business: Radiology fires back at “gaming” report
• Physician’s Weekly: Flaw in NSA can leave physicians owed but unpaid
• Sidley: Fifth Circuit en banc ruling in TMA III
• Polsinelli: En banc Fifth Circuit rejects key QPA rules
• Second Circuit ruling on private enforcement
• Georgetown O’Neill Institute: court decisions under the NSA
• Baker Donelson: Federal IDR Operations final rule
• CMS Complaint Data and Enforcement Report
• Clark Hill: CMS revamps NSA IDR
• AHIP: Health Affairs $22.4 billion study
• College of American Pathologists: NSA Enforcement Act
• Internal PBS Resources