Medicare Compliance & Reimbursement

Plus: CMS releases two new FAQs.

The feds continue to tweak their balance billing referendum, the No Surprises Act, offering new guidance after legal battles reshape the regulation. Read on for the latest updates.

Definition: 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 facility or doctor 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.

Though this most frequently happens in emergencies, receiving care from a physician who’s out of the patient’s health plan’s network can also lead to balance bills.

These kinds of bills and the impact on patients factored into the feds’ decision to regulate balance billing in healthcare.

Here’s a Refresher on the NSA Rollout

When the Consolidated Appropriations Act, 2021 (CAA) drafted plans for the No Surprises Act (NSA) in December 2020, no one could have predicted the many twists and turns the regulation would take. The combination of pro-patient policies, health equity issues revealed during the pandemic, a call for provider-payer transparency — and legal challenges to the reforms — have given rise to many alterations to the original idea of the legislation.

Pocket this timeline of the evolution of the NSA:

July 2021: The Departments of Health and Human Services (HHS), Labor, and Treasury, and the Office of Personnel Management (OPM) published the “Requirements Related to Surprise Billing: Part I” in the Federal Register (see Medicare Compliance & Reimbursement, Vol. 47, No. 14). This interim final rule with comment period (IFC) was a collaboration between federal agencies, including the Centers for Medicare & Medicaid Services (CMS), 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 (see Medicare Compliance & Reimbursement, Vol. 47, No. 21). 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 with each individual state in reference to certain state laws/requirements as they intersected with the NSA provisions. The letters are published on CMS’ website and offer providers guidance on how the agency intended to enforce the rules (see Medicare Compliance & Reimbursement, Vol. 48, No. 5). Review the state enforcement 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 providers and facilities. Legal challenges to the provisions that originated after the second IFC release 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, P.C. “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 then 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 LLP 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.

Heads up: The IDR process may take longer than usual, however, CMS says. “Due to a pause in the launch required to address a court ruling … there may be a backlog of Federal IDR requests and high initial case volume,” the agency indicates.

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.