No-Surprise Billing Law Creates $22,000 Hourly Loophole for Surgical Assistants

The loophole arises because the law's arbitration process for out-of-network claims uses a benchmark based on qualifying payment amounts that some contractors interpret to include assistant-at-surgery modifiers billed separately from the primary procedure. CMS data from 2023-2025 show assistant claims rising 340 percent in orthopedic and cardiothoracic cases after the law took effect, with median hourly equivalents reaching $8,400 and outliers above $22,000 when procedures extend beyond one hour.

Related analyses in JAMA Surgery (2024) and a 2025 MedPAC report document that these payments concentrate among a small number of contractor groups using locum or independent billing entities rather than hospital-employed staff. The original statute aimed to protect patients from balance billing yet contained no explicit cap on assistant reimbursement rates, allowing the same dispute resolution mechanism designed for physicians to apply to assistants whose base Medicare fee schedule values remain far lower.

Hospitals report downstream effects including pressure to absorb assistant costs or renegotiate contracts, while surgeons note that total procedure reimbursement has not increased proportionally. Lawmakers have introduced draft language in both chambers to tie assistant payments to a fixed percentage of the primary surgeon fee, with implementation targeted for 2027.

Next steps hinge on whether CMS issues an interim final rule clarifying the definition of qualifying payment amount for assistants before the 2026 open enrollment period.