Home Health & Hospice Week

You have obligations under the sprawling regulation, trade group advises.

If you think the No Surprises Act doesn’t affect your agency, think again.

Background: Balance billing, also known as surprise billing, generally occurs when a patient receives care expecting an in-network rate or by in-network clinicians, but the provider is actually out of network. The provider then bills the patient directly, leading to a bill higher than the patient anticipated due to the misunderstanding about in-network status.

“Since most discussions and regulatory actions have been around the balance billing provisions of the [NSA], there has been a great deal of confusion for providers that are not inpatient hospitals, emergency rooms, or air ambulances,” notes the National Association for Home Care & Hospice. NAHC “has been trying for almost four months to obtain a clear answer from CMS,” the trade group says in its member newsletter.

Following the Consolidated Appropriations Act, 2021’s No Surprises Act (NSA) provisions passed in December 2020, the regulation took many twists and turns. Pocket this timeline of the evolution of the NSA:

July 2021: The Departments of Health and Human Services, Labor, and Treasury, and the Office of Personnel Management published the “Requirements Related to Surprise Billing: Part I” in the Federal Register. This interim final rule with comment period (IFC) was a collaboration between federal agencies, including the Centers for Medicare & Medicaid Services, and codified the NSA while defining specifics on cost sharing, disclosures, and more. Check out the IFC at www.govinfo.gov/content/pkg/FR-2021-07-13/pdf/2021-14379.pdf.

October 2021: CMS published another IFC, “Requirements Related to Surprise Billing; Part II,” last October in the Federal Register. This rule built on the first IFC, providing more guidance on the implementation of the NSA provisions, including specifics on the independent dispute resolution (IDR) requirements. Find the rule at www.govinfo.gov/content/pkg/FR-2021-10-07/pdf/2021-21441.pdf.

December 2021: CMS began communicating CAA enforcement guidelines to each state in reference to certain state laws/requirements as they intersected with the NSA provisions. The letters published on CMS’ website offer providers guidance on how the agency intended to enforce the rules. Review the letters at www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/CAA.

January 2022: The NSA went into effect on Jan. 1, 2022, to the chagrin of many providers. Legal challenges to the provisions that originated after the second IFC, from the American Medical Association (AMA), the American Hospital Association, and others, worked their way through the courts. The lawsuits focused primarily on the importance of the qualifying payment amount (QPA) in the IDR process, say attorneys Helaine I. Fingold and Erin Sutton with law firm Epstein Becker & Green. “The QPA is essentially the payer’s median contracted rate for similar services. The QPA is used to calculate patient cost sharing and must be considered by the independent arbitrator in resolving a payment dispute between a payer and an out-of-network provider,” explain Fingold and Sutton in online legal analysis.

February 2022: On Feb. 24, U.S. District Judge for the Eastern District of Texas Jeremy D. Kernodle agreed with the Texas Medical Association (TMA) and others that the arbitration process was unfair. The court “vacated the sections of the agency rules related to QPA,” Fingold and Sutton explain. Other lawsuits are still in progress, including some concerning out-of-network air ambulance services brought by the Association of Air Medical Services, they add.

April 2022: Over the last month, CMS has updated its online guidance to include two frequently asked questions (FAQs) sets and the new IDR portal.

1. FAQ on the NSA: The first set of FAQs offers an overview of the rules and lays out the IDR fee structure. Among the highlights is a section that explains individual NSA requirements and provides a thorough explanation of exceptions to the requirement. Find the FAQs at www.cms.gov/files/document/faq-providers-no-surprises-rules-april-2022.pdf.

2. FAQ on GFEs: “The second FAQ answers provider questions related to the content of good faith estimates and when they must be provided, including specific guidance related to recurring items and services and same-day visits,” attorneys Varsha D. Gadani, Monique Peña, and Timothy J. Fry with law firm McGuireWoods in online legal analysis. See the FAQ on good faith estimates at www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Guidance-Good-Faith-Estimates-FAQ-Part-2.pdf.

3. IDR portal: On April 18, CMS introduced the IDR portal for nonparticipating providers and payers. When these entities “are unable to agree on an out-of-network rate,” they can utilize the portal to work through the IDR process, indicate Gadani, Peña, and Fry. “CMS previously indicated that for disputes for which the open negotiation period has expired, notices of initiation of the IDR process may be submitted within 15 business days following the opening of IDR Portal,” note the McGuireWoods attorneys. Find the link to the portal and other IDR resources from CMS at www.cms.gov/nosurprises/help-resolve-payment-disputes/payment-disputes-between-providers-and-health-plans.

Comply With These 3 NSA Provisions

So where does that leave home health and hospice agencies? “In the FAQs, HHS does not specifically state which providers must comply with the varying provisions of the Act,” NAHC analyzes. Instead, “the application of the requirements seems to be defined by provider actions,” it says.

“Therefore, based on the new FAQs, NAHC recommends that home health and hospice agencies comply with three provisions of the [NSA],” the trade group advises: The Good Faith Estimate provision for uninsured or self-pay patients; the continuity of care provision; and the provider directory provision.

“HHS has yet to issue conforming regulations for the continuity of care and the provider directory provisions, but has issued regulations to implement the good faith estimate provision,” NAHC notes.

Plus: Don’t forget to check your state-level “surprise billing” obligations. Due to COVID-19 and the general regulatory whirlwind, state laws haven’t necessarily kept pace with those at the national level. State laws can be a companion to the federal ones, but sometimes they don’t align with the federal laws at all, which can wreak havoc on your internal controls and compliance, experts caution.