Avoid surprises by preparing to implement the No Surprises Act


The deployment of the No Surprises Act is underway, but are companies ready?

In July, the US Departments of Health and Human Services (HHS), Labor, and the Treasury jointly released their Interim Final Rule (IFR) regarding the law, which prohibits “surprise billing” for emergency care and unexpected off-grid. The rule includes regulations that specify how this law will be implemented and enforced from January 1. Here’s what you need to understand to be ready.

What does the rule actually cover?

Signed as part of the year-end appropriations bill last December, the No Surprises Act is the first federal law to limit direct patient liability for some of the more common unavoidable off-grid services. It prohibits the common practice of providers and facilities seeking the remaining balance from patients after they billed insurance for services the plan did not cover because the providers were out of the network for the patient. This practice of trying to get money from patients is called “balance billing”.

According to the Centers for Medicare and Medicaid Services (CMS), about 1 in 6 emergency room visits and hospital stays involve care from at least one non-network provider, resulting in surprise medical bills. Two-thirds of bankruptcies stem from a crushing medical debt, even after the Affordable Care Act was passed.

Unlike many state laws that seek to curb surprise billing, the No Surprises Act also applies to self-funded employer-sponsored insurance plans governed by the federal government and incorporated under the Retirement Income Security Act. of employees (ERISA plans) and air ambulance services. It also covers businesses in states that didn’t have surprise billing laws on the books.

In addition, it requires providers and insurers to disclose how much a patient owes for services rendered and to create an independent dispute resolution (IDR) process for payment disputes, although these are not. fully demarcated before the next rule is released on September 7.

While the law is welcomed by patient and provider advocates, and the interim rule is generally successful with provider hospitals and insurers, it will likely have a negative impact on some off-grid providers.

A disparate impact

According to Victoria Wallace, a partner at Hogan Lovells, which represents these clients, providers who work as auxiliaries to an emergency setting or hospital, such as anesthesia, diagnostic tests and air ambulance services , are in shock.

“The economic effect of this law on my clients could be truly devastating,” Wallace said in a telephone interview. “I think those who will be most affected are the suppliers who don’t know that this law applies to them or could apply to them.”

This includes clinical laboratories, diagnostic test providers, remote health monitoring services, and other ancillary providers who serve patients after discharge.

A perfect and perfectly common example: Imagine you are in the emergency room and the doctor doesn’t think you need to stay overnight, but wants you checked out with more tests. The lab that does this specialized test doesn’t open until morning. They order the test and send you home for quick and prompt follow-up. Does this test still count as part of the covered visit? If so, that means the provider must now know if the diagnostic testing provider is part of your network – or leave that lab responsible for consuming the cost of the service they’ve rendered, under the law. No Surprises Act.

Known and Known Unknown in the July IFR

The July interim final rule hammered home some of the fundamental aspects of the law. He outlined the scope of the law’s prohibition on balance billing, explained to providers and payers how to calculate the patient’s cost-sharing responsibility (the “eligible payment amount” or QPA), explained when patients can waive law enforcement and detailed requirements. for vendor and facility disclosures.

The July rule also broadened the definition of emergency services beyond that of the Emergency Medical Treatment and Work Act (EMTALA), which is often used to limit coverage.

Under the rule, patients cannot be held responsible for a cost greater than the cost of service in the network, unless there is no equivalent provider in the network. In the latter case, the payer must either follow the applicable state law or charge the lowest QPA, which is typically the median contract rate of the plan or issuer.

But some areas like the definition of a “visit” have remained too vague for the convenience of small diagnostic companies, Wallace said. She believes the reimbursement requirements under the law might be too onerous for some independent testing and monitoring services, and might even lead to a complete change in their business models. Instead of relying on balance billing, they may need to figure out how to sell their services directly to providers, who consolidate the expense into the patient’s bill and then reimburse the ancillary service provider, she said. .

Wallace is concerned that the air ambulance industry could be devastated by the requirements of the law, given that most of the players are off-grid with plans and dependent on billing the balance.

“The way the current methodology is set up, there is a very real risk that air ambulance suppliers will not be able to obtain payment through the IDR process that is even sufficient to cover the cost of the supply. service, ”she said. “If so, they have to close bases, and what happens to patients in rural areas that are served by those bases if, overall, the payment is so low that it is not? possible for anyone to do business there?

Another problem is that the calculation of the interim “cost-sharing” rule for air ambulance services does not meet the definition provided by law, Wallace said, leaving the option for plans as well as patients to. pay artificially deflated prices. She argues that this is not what Congress intended to write by writing the No Surprises Act.

“The overall APQ as it applies to air ambulances is designed to keep cost sharing by patients very low, which is a clear benefit to patients, but the problem is that APQ is also a factor required by law for an IDR entity to be considered for payment, and while it is artificially deflated for patients, it is also artificially deflated for provider payment, ”explained Wallace. “It doesn’t necessarily have to be the result, they could structure it slightly differently to avoid that, but at the moment it’s not clarified as much as we need it to.”

How to avoid surprises in the surprise billing rule

So what should diagnostic, monitoring and other ancillary companies do in the meantime to protect their bottom line? Wallace suggests that the following actions be taken:

First do a risk assessment: where do your patients come from? Is it directly from the hospital? If so, you may want to know if you are being paid as part of the patient’s hospital visit, in which case the law applies. However, if it is a separate visit, it gives you refuge as the law does not apply.

Second, make sure you know which networks cover your business and negotiate with suppliers now – don’t wait until the last minute. The plans are already preparing for the law’s effective date of January 1, now negotiating network tariffs at lower amounts for services for which they had not yet calculated QPAs in 2019.

Wallace advised companies to strike a deal before the law goes into effect to maintain the leverage they currently have. Be aware that if providers wish to network with insurance plans after January 1, they will have to go through the cumbersome IDR procedure.

Third, be sure to make your voice heard: the comment period for this IFR is now open, and the period for the next round of regulations will open in September.

” The departments [of Health and Human Services, and Treasury] do their best, and to their credit, organize listening sessions and try to listen to all parties involved, which is a Herculean task, ”Wallace said, urging his clients to meet with those responsible of both departments if they can. “It’s certainly not a give up and turn around, right now,” Wallace said.

Photo: zimmytws, Getty Images

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