Eliott Dear: Surprise Billing vs Underpayment — Two Different Problems Most People Conflate

Most people who read about the No Surprises Act in the press think it addresses one problem: large unexpected medical bills landing on patients. That is one of the two problems. The other one, structurally related but functionally distinct, is provider underpayment. Eliott Dear separates them because the recovery paths are completely different.

Problem One — Surprise Billing (Patient Liability)

The classic surprise-billing fact pattern: a patient receives emergency care at an in-network hospital. The hospital is in-network with the carrier. The physician providing the emergency service is not. The patient gets a large bill for the difference between what the physician billed and what the carrier’s allowed amount was — the balance bill. The patient had no meaningful choice in the matter; they could not select an in-network physician in an emergency room.

The No Surprises Act addressed this problem successfully. Patients are now protected from balance billing in NSA-covered situations. The protections work. Kaiser Family Foundation analyses suggest the patient-side surprise-bill volume has dropped substantially since 2022.

Problem Two — Underpayment (Provider Liability)

Underpayment is what the carrier pays the physician for the same service after balance billing is no longer allowed. The physician billed, say, $1,800 for a complex laceration repair. The carrier paid $400. Under pre-NSA rules, the physician could have balance-billed the $1,400 difference to the patient. Under NSA, the physician cannot. The $400 is what the physician collects. The $1,400 is the underpayment.

Underpayment is not a "surprise" to the patient. The patient pays nothing beyond their in-network cost-sharing. The patient is largely whole. The physician is not.

Most journalism about the No Surprises Act treats both problems as one. Most physicians describing their cash-flow pain to their billing companies are describing underpayment. The same statute that protects the patient from the bill is the statute that, by setting the QPA framework, gives the carrier permission to send a $400 reimbursement for a procedure that should pay $1,400-$1,800.

Why the Distinction Matters

If a patient calls a lawyer about a "surprise bill" they actually received in 2025-2026, the answer is usually short: under NSA, you do not owe the balance, dispute it with the carrier, end of conversation. The patient-side path is mostly self-service through the carrier’s appeals process.

If a physician calls Eliott Dear about a "surprise bill" but the actual story is that they received $400 on a $1,800 procedure, the answer is completely different: IDR. State first if state-IDR-eligible. Federal if not. Attorney-signed submission. FAIR Health UCR data. Collection in 30-60 days under state regulator authority.

The First-Hour Triage

Every Claims Assassins intake starts with the same question: who pays what under the current EOB? If the patient is paying more than their in-network cost-sharing, that is a surprise-billing issue (rare under NSA, mostly self-service appeals). If the patient is whole but the physician is shorted, that is an underpayment issue (the Claims Assassins case type).

The two problems travel together in the public conversation. They do not travel together in the law office.