The Federal Administration Issues More Guidance on the No Surprises Act

Originally Posted on PCG’s Health Policy News on October 29th, 2021.

Author: Lisa Kaplan Howe


Implementation of the No Surprises Act (NSA) continued this fall with the release of a second interim final rule (IFR) on September 30, 2021. The NSA—which was signed into law as part of an appropriations package at the end of 2020—seeks to prevent the unexpected medical bills that uninsured individuals often face when they receive care from out-of-network providers in an emergency or otherwise unknowingly. The Act limits the amount patients can be charged by out-of-network emergency service providers (including ambulances and air ambulances), as well as for out-of-network services provided at in-network facilities, unless the patient consents to be treated by an out-of-network provider. It also establishes an arbitration process (between the provider and payer) for disputes regarding payment amounts. The law applies broadly to individual and group health plans, including self-funded plans, grandfathered plans, and coverage offered through the Federal Employees Health Benefits Program, but does not apply to Short-Term Limited Duration Insurance.

The IFR addresses topics not addressed by an earlier rule or recent guidance. Below, we summarized some of its key points. Like the prior rule, given the limited time prior to January 1, 2022, when provisions begin taking effect, the Departments of Health and Human Services, Labor and Treasury issued the newest rule as an interim final rule. Comments on the IFR will be collected through December 6, 2021.

Independent Dispute Resolution Process

The rule outlines the Federal Independent Dispute Resolution (IDR) process that will be used if out-of-network providers and payers cannot come to agreement on the charges for applicable out-of-network services during the 30-day negotiation period. The process and timeline are detailed in the IFR, as well as what standard notices the parties must provide to each other and the federal government during each step in the process. The rule also provides criteria for batching multiple “qualified IDR” claims together into one process:

  • the claims must be billed by the same provider or group of providers/facility;
  • the payment of the claims must be sought from the same group health plan or health insurance issuer;
  • the claims must be for the same or similar items and services; and
  • the items or services must have been furnished within the same 30-business day period or a 90-calendar-day “suspension period” described in the regulations.

Claims will be submitted through a federal portal and considered by independent IDR entities. The IFR also addresses the certification of those entities. Interested organizations were allowed to begin submitting applications on September 30, 2021, with applications due no later than November 1, 2021. Factors that will be considered include:

  • staffing and expertise;
  • ability to issue decisions in a timely manner; and
  • the fixed fee the organization will charge (for 2022 it must be between $200 and $500 for a single claim and $268 and $670 for batched claims).

IDR entities will be held to confidentiality and privacy requirements.

Good Faith Estimates and Patient/Provider Dispute Resolution

The IFR also outlines the process that providers and provider facilities must follow to provide uninsured/ self-pay patients with a good-faith estimate of expected charges when a service is scheduled or the patient requests it. This includes the expected charges for the primary item or service, as well as any other items or services that are reasonably expected to be provided as part of the same request. Additionally, the rule addresses the information that providers must furnish and gives examples of comprehensive estimates. Accessibility and timing requirements are also addressed.

Further, the rule establishes a dispute resolution process for uninsured/self-pay patients to challenge a provider’s bill that is substantially in excess of the good faith estimate. The rule defines what would be considered “substantially in excess” as a total amount billed by a provider or facility that is at least $400 more than the total amount of expected charges listed on the good faith estimate. An individual that will seek dispute resolution must notify the Department of Health and Human Services of the intent to do so within 120 days of the initial bill via an “initiation notice,” which must be submitted through the IDR portal. The content of the notice is outlined in the IFR. The fee for the dispute resolution process is $25, and the IFR outlines how a Selected Dispute Resolution (SDR) entity will be assigned, the requirements for those entities, the process and timeline, and patient protections. The IFR defers to existing state processes that meet or exceed NSA standards.

External Review Process

Finally, the IFR addresses the external review process that insurers must make available to enrollees for any NSA-related adverse determination, including those related to NSA cost-sharing protections and compliance. Specific NSA-related disputes that may go to external review include:

  • a determination that a service was not an emergency service;
  • the provision of notice and waivers; and
  • balance billing.

The rule does not make any changes to the external review process established under the Affordable Care Act (ACA) to which most plans are already subject, but extends that process to grandfathered plans, which are subject to the NSA but not ACA external review requirements. Under the rule, grandfathered plans must make external review available once the enrollee exhausts any internal appeals process, or immediately if there is no internal appeals process.

More information on these topics can be found in the IFR, in the Centers for Medicare and Medicaid Services (CMS) IFR fact sheet and IDR fact sheet, and on the new NSA website. One more rule is expected to be released, which will address pharmacy- and prescription drug-related requirements; it is currently pending in internal review.

Posted by Rachel Ray

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