The 2022 evolution of the law without surprise | Saul Ewing LLP

The No Surprises Act (“NSA”) is a federal law that came into force on January 1, 2022. The NSA statute was enacted under the Consolidated Appropriations Act, 2021 and was implemented by three provisional rules announced jointly by the Office of Personnel Management within the Department of Treasury, Department of Labor and Department of Health and Human Services in 2021 [1]. The primary goal of the NSA is to eliminate surprise medical bills for people enrolled in group health plans or group or individual health insurance coverage offered by a health insurance issuer. The NSA prohibits surprise billings in situations where services are provided by out-of-network facilities in emergency situations, for services provided when a patient is treated by an out-of-network provider at an in-network facility, and for pay bills issued by out-of-network air ambulances by limiting the amount that can be billed to patients.

What do you want to know:

  • The primary goal of the NSA is to eliminate surprise medical bills for people enrolled in group health plans or group or individual health insurance coverage offered by a health insurance issuer.
  • The NSA prohibits surprise billings in situations where services are provided by out-of-network facilities in emergency situations, for services provided when a patient is treated by an out-of-network provider at an in-network facility, and for pay bills issued by out-of-network air ambulances by limiting the amount that can be billed to patients.

Parts of the NSA have since been released due to legal challenges. The Centers for Medicare & Medicaid Services (“CMS”) has released additional guidance and Frequently Asked Questions (“FAQ”) documents throughout 2022 to address these challenges. This article covers both legal challenges and ongoing CMS tips and FAQs.

Legal challenges

In February 2022, the arbitration process established in the NSA was overturned by a federal judge in Texas in Texas Med. Association v. United States Department of Health and Human Services.[2] The NSA has included guidance for Independent Dispute Resolution (“IDR”) processes to resolve disputes between out-of-network providers and health insurers regarding appropriate reimbursement amounts. IDR is used when negotiations fail and a certified federal IDR entity [3] is required to review the details of the case and the items or services received and render a final judgment. The NSA has detailed a process by which the arbitrator decides the appropriate rate considering various factors, including how close the offer is to the eligible payment (“QPA”) amount. The judge determined that the government failed to comply with the Administrative Procedure Act by not following NSA text or adhering to proper notice and comment requirements when asking arbitrators to select the most appropriate amount. closer to the median rate of the network in the settlement of payment disputes. between insurers and some out-of-network healthcare providers.

In July 2022, another part of the NSA was released by the same Texas federal judge in Lifenet, Inc., c. United States Department of Health and Human Services. [4] This time, an interim final rule applicable to air ambulance service providers has been rescinded. The judge applied the same reasoning in Texas Med. declaring the provision to be unlawful, declaring the provision created a presumption of QPA by requiring the arbitrator to select the QPA unless credible information clearly demonstrates that it was materially different from that of an appropriate out-of-network tariff .

CMS Guidance

Aside from legal challenges from the NSA, many useful guidance documents have been issued by CMS to clarify the provisions of the NSA. Generally, CMS guidance is an informal summary of legal standards – it is not a formal law, regulation or policy. Its purpose is to answer questions and provide more information to better enable vendors to comply with the NSA. In February 2022, CMS published an FAQ [5] answering nearly 50 questions about Independent Dispute Resolution under the NSA with a chart [6] to help determine whether the federal IDR process, state law, or the Model All Payers Agreement applies to determine out-of-network rates.

In April 2022, CMS released more FAQs. A two-part FAQ [7] focused on the Good Faith Estimates (“GFEs”) that providers must provide to uninsured and self-paying patients. This FAQ included answers to what encompasses a GFE, when a GFE must be provided, and other requirements for a GFE. Part two of this two-part FAQ details the vendor’s NSA compliance guidelines, covering topics such as who is exempt and who falls under NSA requirements, signature requirements, and IDR fees.

In June 2022, in response to continued provider confusion regarding NSA applicability and patient notification and consent requirements, CMS released more FAQs [8] clarify which providers must comply with NSA rules, answer questions about notifying a patient, and obtain patient consent to waive balance billing and cost-sharing protections.

In August 2022, in addition to CMS publishing additional FAQs [9] Aiming to clarify the application of NSA billing provisions, the Office of Personnel Management, Department of Treasury, Department of Labor, and Department of Health and Human Services jointly issued a rule finalizing certain interim rules from 2021 and further clarifying the IDR process for health insurance providers and issuers. The Final Rule (“Final Rule”) [10] addressed portions of the NSA overruled by court rulings; and amended provisions for consideration of information when a certified IDR entity makes a payment decision. The final rule includes requirements for explanations of IDR entity determinations and the underlying rationale; including the factors an IDR entity must consider when determining a payout and the requirements for a written decision. The final rule directs the IDR entity to select the offer that the IDR entity believes best represents the value of the item or service at issue. The final rule also addresses disclosure requirements by plans and issuers regarding QPA. The terms of the final rule went into effect on October 25, 2022.

In September 2022, an RFI to inform rulemaking on requirements related to Advanced Explanation of Benefits and GFE for Covered Individuals was issued [11]. Saul Ewing’s attorneys will follow any rules promulgated as a result of the request for information and will issue an update as appropriate.
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[1] The provisional rules parts 1, 2 and 3 can be viewed at:
https://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billing-part-i
https://www.federalregister.gov/documents/2021/10/07/2021-21441/requirements-related-to-surprise-billing-part-ii
https://www.federalregister.gov/documents/2021/11/23/2021-25183/prescription-drug-and-health-care-spending
[2] ED Tex., No. 6.21-cv-425 (February 23, 2022).
[3] A list of federal IDR-certified entities can be found here.
[4] ED Tex., No. 6:22-cv-162 (July 26, 2022).
[5] https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Guidance-FAQs-Federal-Independent-Dispute-Resolution-Process.pdf
[6] https://www.cms.gov/files/document/caa-federal-idr-applicability-chart.pdf
[7] https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Guidance-Good-Faith-Estimates-FAQ.pdf
[8] https://www.cms.gov/files/document/cciio-nsa-faqs.pdf
[9] https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-55.pdf
[10] https://www.federalregister.gov/documents/2022/08/26/2022-18202/requirements-related-to-surprise-billing
[11] https://www.federalregister.gov/documents/2022/09/16/2022-19798/request-for-information-advanced-explanation-of-benefits-and-good-faith-estimate-for-covered

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