Knowledge Center

In a recent letter to Secretaries of Health and Human Resources, Treasury and Labor, insurers such as Elevance Health (the parent company of Anthem Blue Cross Blue Shield) and organizations representing employers argued that elective surgeries should not be covered under the protections of the No Surprises Act. This position misunderstands both the meaning of “elective” in medicine and the reality facing patients and physicians across the United States.

The term “elective surgery” is frequently misinterpreted. In everyday language, “elective” implies something optional or discretionary. In medicine, however, elective simply means that the procedure is scheduled in advance rather than performed in an emergency setting. It does not mean the surgery is unnecessary. For millions of Americans, so-called elective procedures are medically necessary interventions that save lives, prevent disability, and restore quality of life.

No patient chooses surgery casually. Patients undergo surgery because they are facing serious health conditions—cancer resections, cardiac procedures, spinal decompressions, joint replacements that restore mobility, and countless other interventions that prevent deterioration and suffering. The decision to proceed with surgery typically follows extensive evaluation by physicians, failed conservative treatments, and careful consideration of risk versus benefit. Calling these procedures “elective” in the sense of optional misrepresents the medical reality and trivializes the patient suffering these conditions.

Patients Seek the Most Experienced Surgeons

When patients are told they need surgery—particularly complex or high-risk procedures—their priority is not simply finding a name on an insurance list. Patients want experienced, skilled, and highly trained surgeons with strong patient outcomes. They seek physicians who have performed these procedures many times, who specialize in the condition they are treating, who will spend the time answering patient questions and who have demonstrated success in improving patients’ lives.

In many cases, those specialists may not be part of a patient’s insurance network. Patients and referring physicians often choose surgeons based on expertise, outcomes, and reputation rather than network status. For complicated or life-altering procedures, patients frequently turn to out-of-network physicians whose experience and results provide the greatest confidence in a successful outcome.

Restricting protections under the No Surprises Act for so-called elective surgeries would effectively penalize patients for seeking the best possible care when facing serious medical decisions and once again expose them to uncovered medical costs, greater financial exposure and a diminution of coverage.

A Law Designed to Protect Patients

The No Surprises Act, enacted as part of the Consolidated Appropriations Act of 2021, was designed to protect patients from medical bills under many circumstances, including when they receive care from out-of-network providers for non-emergency services at most in-network facilities. For these types of services from certain providers, a patient may waive the protection of the NSA and be balanced billed. Absent a valid waiver from the patient, the NSA independent dispute resolution (IDR) process is utilized to determine fair payment when insurers and providers disagree on reimbursement.

At its core, the law recognizes a simple principle: patients should not be caught in the middle of payment disputes between insurers and physicians. Patients should be able to seek medically necessary care without fearing financial ruin from medical bills. As widely reported, the law has achieved success in this area- patient balance billing has been significantly reduced, and patients can now seek the best care needed when facing these challenging medical issues.

If ‘elective’ surgeries were excluded from these protections, that principle would be undermined. Without the No Surprises Act’s safeguards, patients could again face charges over the NSA mandated in-network cost sharing amount.

The Reality of Inadequate Networks

Another factor often overlooked in this debate is the widespread inadequacy of insurance networks. In many regions, networks are so narrow that patients simply cannot access the expertise they need within the plan’s provider list or access is limited by time and distance. And often when the network lists a surgeon as having experience with the particular surgery, the network directory is inaccurate, and patients learn that these providers have very little expertise in the services needed. While the No Surprises Act mandates that insurers keep accurate network directories, with updates required every 90 days, there has been little enforcement to confirm compliance.

For physicians, joining insurance networks has become increasingly difficult. Insurers frequently offer contract rates that mirror or approximate Medicare reimbursement levels. While Centers for Medicare & Medicaid Services reimbursement may be appropriate for a subsidized federal program with predictable payment structures, commercial insurers collecting higher premiums should not expect private practices to operate sustainably at those same rates.

Compounding this issue is how payment benchmarks are calculated under the No Surprises Act. The law relies heavily on the Qualifying Payment Amount (QPA)—an unaudited figure set unilaterally by payors intended to represent the median in-network rate for a given service in a geographic area. If median in-network rates truly reflect the QPA, a troubling reality emerges: many QPA amounts fall below, at or slightly above the Medicare fee schedule.

In other words, the supposed “market rate” used to anchor payment disputes may in some cases be lower than what the federal government pays through Medicare. For many physician practices already facing rising operational costs—including staffing, technology, malpractice insurance, and compliance authorization and reimbursement requirements—these payment levels are simply not sustainable.

Patients Pay More for Out-of-Network Coverage—but Receive Less

Another troubling aspect of the current system is that patients often pay higher premiums specifically for insurance plans that include out-of-network coverage. These plans are marketed as offering greater flexibility and access to specialists outside the insurer’s network.

However, many patients are misled about what out-of-network coverage actually provides. When insurers set allowed amounts for out-of-network services at levels that resemble or even fall below government-subsidized Medicare rates, the result is predictable: patients who paid more for broader coverage are left with large, unexpected, surprised balance bills. Most patients do not understand the mechanics of reimbursement formulas, allowed amounts, or insurer payment benchmarks; they reasonably believe that paying higher premiums for out-of-network benefits will provide meaningful financial protection when specialized care is needed. Instead, after surgery, many discover that the insurer paid far less than expected, leaving them with substantial balances and rendering those out-of-network benefits virtually illusory. The No Surprises Act has done what insurers long refused to do: it has made out-of-network coverage resemble the product patients and employers believed they were buying all along. Out-of-network benefits are supposed to guarantee access to the provider of one’s choice without exposing patients to financial ruin. Patients undergoing medically necessary care now retain financial control when choosing their physician unless they knowingly waive those protections under the NSA.

Instead, before the NSA, that coverage was often little more than a mirage—costly in premiums, but hollow in practice. Patients paid for flexibility and protection, only to be met with artificially depressed reimbursements, massive unpaid balances, and the very real threat of medical debt or bankruptcy when they needed surgery most. The NSA corrected that abuse by turning illusory coverage into meaningful coverage and by restoring the basic principle that insurance should provide genuine access to medically necessary care, not serve as a vehicle for insurers to collect premiums and “shared savings” while shifting the financial risk back onto patients.

Even In-Network Physicians Face Claim Denials

Even when physicians agree to join insurance networks, the challenges do not end. Claim denials, delayed payments, and administrative barriers remain routine. Physicians regularly face situations where procedures are pre-authorized, performed appropriately, and still denied after the fact.

These denials impose significant administrative burdens on practices that must spend time and resources appealing decisions which increasingly absorb an in-network provider’s contract rate. In other words, being an in-network provider presents virtually the same challenges as an out-of-network provider. Given these practices by payors toward in-network providers, there is ample reason for providers to go out-of-network and allow independent third parties to determine fair reimbursement for complex medically necessary services.

Insurance Companies Continue to Prosper

Despite the challenges facing providers and patients, insurance companies continue to prosper. The health insurance industry consistently points to physicians and hospitals as the drivers of rising healthcare costs, framing providers as the problem in policy debates and media narratives. Yet these same companies generate billions in profits annually while paying their top executives tens of millions of dollars each year in salary, bonuses, and stock incentives. For example, UnitedHealth Group, Elevance Health, CVS/Aetna, and Cigna all report multi-billion dollar net incomes, with CEOs earning upwards of $20 million annually, and CFOs and division heads regularly receiving $6–18 million.

Moreover, prior to the NSA, insurers structured out of network benefit plans to reward themselves with shared savings payments, allowing them to further profit when providers were underpaid . As a result, even while premiums continued to rise year after year, insurers used these arrangements to take money away from providers and direct more of it back to their own bottom line.

Under the No Surprises Act, insurers have lost some of that leverage because providers have increasingly prevailed in the Independent Dispute Resolution process. That may help explain why payors are now trying to narrow or deny coverage for non-emergency services that fall under the Act. Rather than fairly reimbursing surgeons for the care they provide through engaging in the NSA negotiation process, insurers appear to be trying to return to the old model, where more of the money was diverted to payors and their third-party negotiating vendors instead of the physicians actually delivering the services. Insurers continue to pressure independent physicians to accept reimbursement rates barely above subsidized Medicare rates when contracts are even offered or face administrative burdens navigating dispute processes like the No Surprises Act, illustrating a stark imbalance: providers are blamed for costs they have little control over, while the real financial power — and opportunity to rein in spending — rests with concentrated insurers and their highly compensated executives. With the overall cost of out-of-network care being only a small fraction of the overall cost of healthcare in the United States, efforts should focus on how to rein in the control of delivery of care by a select few insurance companies and the exorbitant profits made by these companies- not to further place strain on patients and the providers who actually deliver the care generating these massive profits for insurance companies.

Protecting Access to Care

The debate over elective surgery coverage under the No Surprises Act should not lose sight of the human reality behind these policies. Patients facing surgery are rarely choosing convenience or preference—they are responding to serious medical needs. For many, surgery represents the only path to survival, mobility, or relief from debilitating pain.

Weakening the law’s protections would place patients back in the middle of financial disputes they cannot control and further reward insurance companies with additional profits through their established “shared savings” profiteering. It would also exacerbate existing problems with network adequacy and fair physician compensation.

Just as importantly, placing patients back into the middle of insurer–provider payment disputes risks recreating the very problem the law was designed to solve. Rising consumer medical debt and personal bankruptcies related to healthcare costs were key drivers behind the passage of the No Surprises Act. Rolling back its protections for elective surprise bills would almost certainly reverse that progress.

A healthcare system that works for patients must recognize several key truths:

• Elective surgery is often medically necessary and not a choice.
• Patients frequently seek the most experienced surgeons with the best outcomes, who may be outside their insurance network.
• Insurance networks frequently fail to provide adequate timely access to specialists.
• Commercial reimbursement rates must reflect the real costs of delivering care in 2026 and beyond.
• The QPA benchmark often understates real market value, with many amounts falling below the Medicare fee schedule.
• Patients who pay more for out-of-network coverage should not be misled by artificially low allowed amounts and then receive SURPRISE BILLS.

The No Surprises Act was intended to restore balance and transparency to the healthcare payment system. Preserving its protections—including for scheduled surgical care—is essential to ensuring that patients receive the treatment they need without financial shock.

In the end, the question is simple: when a patient needs surgery to live, function, or recover, is that truly elective?

For patients and physicians alike, the answer is clear—it is not.

¹ ERISA Industry Committee (ERIC), IDR Sign-On Letter Regarding the No Surprises Act (Feb. 2026), available at https://www.eric.org/wp-content/uploads/2026/02/IDR-Sign-On-Letter-for-Distribution-Nonbranded-1.pdf

² See 45 C.F.R. § 149.420(b)(1) (2026) (prohibiting waiver of No Surprises Act protections for certain ancillary services).

³ U.S. House Committee on Ways and Means, No Surprises Act Is Reducing Surprise Bills, Increasing In-Network Care, with Greater Benefits Possible Under Full Implementation (Feb. 23, 2026), available at https://waysandmeans.house.gov/2026/02/23/no-surprises-act-is-reducing-surprise-bills-increasing-in-network-care-with-greater-benefits-possible-under-full-implementation-2/

⁴ U.S. Government Accountability Office (GAO), Private Health Coverage: Provider Network Adequacy and Accuracy of Directory Information (GAO-23-105642, 2023), available at https://www.gao.gov/assets/gao-23-105642.pdf

⁵ 26 U.S.C. § 9820 (2026) (requiring health plans to maintain accurate and up-to-date provider directories).

⁶ See, e.g., https://pmc.ncbi.nlm.nih.gov/articles/PMC11523055/
(analyzing Qualifying Payment Amounts and their relationship to Medicare reimbursement rates).

⁷ See Health System vs. Insurer CEO Salaries 2025, Becker’s Hospital Review (2025), https://www.beckershospitalreview.com/finance/health-system-vs-insurer-ceo-salaries-2025/

⁸ See, e.g., In re MultiPlan Health Insurance Provider Litigation, No. 1:24-cv-06795 (N.D. Ill. 2025); U.S. Senate Committee on Finance, Letter Regarding MultiPlan Data iSight Practices (May 22, 2024), https://www.finance.senate.gov/imo/media/doc/052224_wyden_sanders_multiplan_data_isight_letter.pdf.
American College of Radiology, Sharing Is Not Always Caring, ACR Bulletin (2023), https://www.acr.org/Clinical-Resources/Publications-and-Research/ACR-Bulletin/sharing-is-not-always-caring.

See, New York Times articles. IN RE: Multiplan Health Insurance Provider Litigation, No. 1:2024cv06795 – Document 428 (N.D. Ill. 2025). https://static01.nyt.com/newsgraphics/documenttools/1d00c48c7634f677/0d0d8490-full.pdf
https://www.finance.senate.gov/imo/media/doc/052224_wyden_sanders_multiplan_data_isight_letter.pdf
https://www.acr.org/Clinical-Resources/Publications-and-Research/ACR-Bulletin/sharing-is-not-always-caring