What Surgeons Need to Know
In December 2020, Congress passed sweeping legislation to protect patients from excessive surprise medical bills. The law, commonly referred to as the No Surprises Act (NSA), partially went into effect at the beginning of 2022 and is best known for prohibitions on certain billing practices. The law also establishes a federal independent dispute resolution (IDR) process to settle billing disputes between clinicians and insurers when no state law is in place to govern the dispute. These provisions are intended to take patients out of the middle of these disagreements.
The legislation included other provisions intended to better inform patients about what costs to expect and their rights under the law. For instance, providers are expected to post disclosures in offices and on websites, provide patients with a notice of their rights under the law, and must offer good faith estimates (GFEs) in certain circumstances regarding how much will be billed for a service.
Implementation of the NSA has been problematic thus far, with certain provisions implemented in a manner that seems inconsistent with the legislative language. This discrepancy has led to critical comments, complaints, and even lawsuits from stakeholders likely to be adversely affected by the law. The federal entities tasked with implementing the law have also missed key rulemaking deadlines that have led to inconsistent application of the statute. For example, some provisions obligating health plans to ensure greater transparency for patients have thus far not been implemented.
Furthermore, provisions of the law defer to the states when they have passed their own surprise billing legislation, meaning that surgeons may have slightly different processes for complying with the law or seeking dispute resolution over payments depending on where they practice. Several states are considering new legislation that would affect how the law is enforced in their jurisdiction.
This page is intended to help surgeons comply with the basic requirements of the law related to necessary disclosures, notices to patients, and production of GFEs. It is important to remember that parts of these provisions are required of you even in scenarios where you are not attempting to balance bill a patient, Although not exhaustive, it should guide surgeons seeking to ensure they are compliant with federal and state laws related to surprise billing. Please follow the links to the left to learn more about specific provisions of the new law including:
Patient Protections
The patient protections in the No Surprises Act (NSA) essentially stem from two scenarios:
- Emergency services (including post-stabilization services rendered after an emergency medical service)
- Non-emergency care services provided by out-of-network providers at in-network facilities.
- "Facility" includes a hospital, hospital outpatient department, a critical access hospital or an ambulatory surgery center
Patient protections included to address the above scenarios:
- BALANCE BILLING PROTECTION – Providers cannot balance bill patients apart from limited circumstances in which there is notice and consent
- COST-SHARING PROTECTION – In general, patients cannot be required to pay more out of pocket for services provided than they would have otherwise paid had that service been provided by an in-network provider.
Payment of OON providers
Impact of Specified State Laws addressing surprise billing:
- The No Surprises Act is generally designed to defer to laws passed and regulations imposed by states to address balance billing and out-of-network payments from insurers to providers
- The No Surprises Act does this by allowing "Specified State Law" to govern. A "Specified State Law" is defined as "a state law that provides a method for determining the total amount payable … to the extent the state law applies."
- The state law MUST:
- Apply to that plan, issuer, and coverage involved. This includes situations where the state has allowed the plan to "opt-in" to the state's insurance regulation;
- Apply to the nonparticipating provider or nonparticipating emergency facility; AND
- Apply to the item or service involved.
Qualifying Payment Amount (QPA):
- Concept created in the NSA defined as a plan's "Median Contracted Rate" for an item or service.
- Established based on 2019 contract data and updated annually for inflation using the Consumer Price Index for All Urban Consumers (CPI-U).
- Used as the basis for patient cost-sharing protections and a reference point for the Federal Independent Dispute Resolution (IDR) process.
Federal Independent Dispute Resolution (IDR) Process:
- Only applies to emergency/post-stabilization and non-emergency item or service/out-of-network provider/in network facility scenarios captured by the No Surprises Act
- Reserved for disputes relative to remuneration for items and services to which no state law surprise billing law applies.
- Does not have any impact on a patient's cost-sharing responsibility.
- CMS' Federal IDR portal: https://nsa-idr.cms.gov/paymentdisputes/s/ - Launched on April 15, 2022.
