Operational challenges of the No Surprises Act continue to surprise providers

The No Surprises Act (NSA) was enacted on December 27, 2020, as part of the Consolidated Appropriations Act of 2021. Its goal is to protect patients from receiving surprise medical bills from hospitals, physicians and other ancillary providers when those providers are out of network (OON) to their health plans. To accomplish that goal, the NSA: 1) prohibits balance billing patients for emergency services and services provided by OON providers at in-network facilities; 2) creates disclosure requirements regarding pricing and balance billing protections and 3) creates both a provider-initiated dispute resolution process against payers and a patient-initiated dispute resolution process against providers to determine appropriate payment amounts due.

Many provisions of the NSA went into effect at the start of the year. To date, CMS has issued several frequently asked questions (FAQs) and promulgated two sets of lengthy interim final rules in an effort to further delineate operational expectations and answer questions. Additional regulations, promulgated in final form, are anticipated sometime this summer.

Implementation poses substantial challenges for many health care providers as they work to operationalize the NSA's requirements. To date, three NSA requirements appear to be raising the most implementation concerns and we address them below.

Good faith estimates

In non-emergency situations, the NSA requires that providers provide uninsured, self-pay and OON patients with a Good Faith Estimate (GFE) of anticipated charges for a scheduled procedure. This necessarily requires that providers ensure they are properly identifying patients' health insurance status to determine to whom a GFE must be provided. To complicate matters, if the patient's service is expected to be provided in conjunction with another provider or facility, the co-provider's charges must be included in the GFE (though CMS is exercising its enforcement discretion for this requirement through the end of the year).

Operational challenges arise when determining what items or services to include in the GFE. The GFE must include reasonably expected charges. Providers are not required to include charges for unanticipated items or services, such as charges for complications that may arise. However, determining what services are reasonably expected versus what services are unanticipated can pose challenges for providers. The consequences for missing the target are that if the actual charges are greater than the GFE by US$400 or more, then the patient can initiate a dispute resolution process against the provider to determine the correct amount of the bill.

Issues concerning a change in patient health care status, communication between and among co-providers and co-facilities regarding expected charges, and changes involving when providers, such as physicians, can no longer provide the anticipated services all create complications and implementation challenges for providers.

Notice and consent

Balance billing is prohibited when providing OON emergency services and non-emergency services by OON providers during patient visits to in-network health care facilities. The term "emergency services" is defined in the NSA regulations to include an appropriate medical screening examination, ancillary services routinely available in an emergency department used to evaluate whether an emergency medical condition exists, and any further medical examination and treatment that is required to stabilize the patient. The term "ancillary services" is defined to include an array of provider-based physician and laboratory services. In these instances where balance billing is prohibited, cost-sharing for insured patients is limited to in-network amounts.

Every provider must post a notice on a public website and provide a one-page notice to every patient on the balance billing protections that are afforded them, as well as notice of any state requirements and contact information. CMS has provided sample language for providers to follow.

There are limited circumstances where an exception to the balance billing protections may apply. These limited circumstances occur when a provider is treating a patient for either post-stabilization services or a prescheduled, non-emergency procedure in which the facility is in-network but certain services are provided by OON providers, or where the non-emergency service is provided by OON facilities and OON providers. For the exception to apply, the provider must obtain the patient's consent to be balanced billed by providing the patient with the standard notice and consent documents created by CMS in the patient's preferred language. The notice and consent documents must include a GFE.

It can be difficult to determine when a patient moves from an emergency or post-stabilization setting to a setting in which the medical items and services they need or wish to receive must involve the provision of the notice and consent exception for purposes of being allowed to balance bill such patient. This can be tricky to operationalize and ensure consistency across an organization.

Additional operational challenges may be presented if a provider seeks to transfer a patient to an in-network facility once a patient has received the medical screening exam and is determined to be stable. Hospitals have been developing policies, procedures and compliance training protocols to address these issues and the CMS FAQs provide context and guidance.

Common questions concern timing for notices, integration of state and federal requirements and general operational integration issues with revenue cycle, financial counseling and emergency department processes.

Litigation and the IDR process

As noted above, the NSA includes an independent dispute resolution (IDR) process that can occur between a provider and a health plan. The IDR process for claims administration established under the NSA has begun in earnest as the new portal has opened and claims submission has commenced. Because of the time frames within which claims must be brought, providers are encouraged to develop protocols and practices to ensure that claims are appropriately and timely adjudicated and submitted for resolution through the NSA's IDR process.

We are actively working with providers to help develop their strategies for pursuing claims they believe have been adjudicated and underpaid and to assist those providers that have either been terminated from health plans or have a large OON patient population.

For further information regarding the nuances of the No Surprises Act regulations, please join us for a webinar answering questions raised by the No Surprises Act on Wednesday, June 15, 2022.

Special thanks to Kathy Rubinstein, Senior Healthcare Analyst at Norton Rose Fulbright, for assisting in the preparation of this content.