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Billing:

Find Clarity in Surprise Billing Regulations

Published on Tue Mar 15, 2022

The NSA may be a headache for physicians.

If you’re confused about your obligations as a practice or provider for the No Surprises Act (NSA) or around balance billing generally, you’re not alone.

There’s a lot of confusion about what practices need to do to comply with the NSA — it’s so poorly written that even the Stark regulations seem easier to understand, says Terry Fletcher, BS, CPC, CCC, CEMC, SCP-CA, ACS-CA, CCS-P, CCS, CMSCS, CMCS, CMC, QMGC, QMCRC, owner of Terry Fletcher Consulting Inc. and consultant, auditor, educator, author, and podcaster at Code Cast, in Laguna Niguel, California.

Know These Key Factors

Background: In December 2020, as part of the Consolidated Appropriations Act, 2021 (CAA), Congress outlined its plans for the NSA. In July 2021 and October 2021, CMS published interim final rules with comment periods explaining some of the guidelines various federal agencies are issuing about balance billing, including implementation guidance and requirements related to the dispute resolution process. Now, CMS is posting CAA enforcement letters on its website, explaining its interpretations, the impact on each state, and the provisions it plans to enforce, as well as state-by-state information on the federal patient-provider dispute resolution process.

Balance billing is the crux of the NSA, but what does the term mean? Fletcher says some people think that balance billing precludes billing patients at all.

Healthcare.gov provides this definition: “When a provider bills you for the difference between the provider’s charge and the allowed amount. For example, if the provider’s charge is $100 and the allowed amount is $70, the provider may bill you for the remaining $30. A preferred provider may not balance bill you for covered services.”

In other words, Fletcher says, practices cannot bill patients for the difference in amounts between what they bill insurance and what the insurance plan allows to be covered; providers can only bill patients for their shared cost, which is typically connected to a deductible or co-pay.

However, the bill (or parts of it) apply to different types of providers differently. Fletcher recommends thinking about the act as having these three parts: emergency services; patients who are getting care at a hospital or ambulatory surgery center or freestanding emergency departments or air ambulances; and estimates for patients who may or may not have insurance but aren’t using it to pay for their care.

The third part is what will probably affect most practices because it requires clinics to provide “good faith estimates” to patients on the costs of patient care.

What You Can and Cannot Do

Disclosure notice defined: A disclosure is a 1-page document that gives patients an explanation of their rights under the NSA. CMS has a draft form that you can use, but you don’t have to as long as the pertinent information is still included. The explanation must be posted and can be mailed electronically or in hard copy, depending on the patient’s preference.

“This is very patient- and payer-friendly, just so you know. It’s not physician-friendly,” Fletcher says. At this point, in March 2022, there are no civil monetary penalties (CMPs) attached to compliance on the disclosure — yet.

Good faith estimate defined: As of Jan. 1, 2022, if a patient isn’t using insurance to pay for their care, they’re entitled to a good faith estimate of what their care will cost for any service scheduled three or more business days in advance. Beyond cost, the good faith estimate is supposed to include diagnostic and procedure codes, and even the physician’s national provider identifier (NPI) number, Fletcher notes.

The good faith estimate requirements apply to any scheduled service more than three days out, including office visits. If you’re scheduling an encounter three to nine days out, you have a day to provide an estimate. If the encounter is 10 or more days out, you have three business days to produce an estimate.

In the absence of the estimate or if the actual cost of the estimate is $400 or more, the patient can file for the dispute resolution procedure. When CMPs are determined, it’s also possible that entities could get hit with a CMP for failure to provide a good faith estimate, Fletcher says.

Another facet of the NSA is note and consent. It’s not uncommon for a patient to go to an in-network facility and see an out-of-network provider, especially because physicians are often on-call and then end up working. In this situation, “there are limits on the ability of the out-of-network physician to balance bill the patient,” Fletcher says.

But this may present problems, especially for providers like anesthesiologists or hospitalists. “This is going to force those types of providers who are on rotation or on call to get on these networks, otherwise they’re going to be out of luck with some of the reimbursement,” Fletcher warns.

Note the Bigger Picture

CMS outlines its survey process in the enforcement letters and how the NSA dissects the laws of the individual state. For example, the letters detail “which NSA requirements will be enforced by specific states, and which requirements will be directly enforced by CMS,” explain attorneys Jonah D. Retzinger and Alexis Boaz with Epstein Becker & Green P.C. in the firm’s Health Law Advisor blog.

The letters also discuss states entering into a collaborative enforcement agreement with CMS if the state cannot enforce the provisions. “Under such an agreement, the states would seek voluntary compliance with NSA requirements and CMS would consider formal enforcement action only if the state could not obtain voluntary compliance,” note attorneys Michael S. Kolber and Harvey L. Rochman with Manatt, Phelps & Phillips LLP. in the law firm’s Health Highlights newsletter. “In the absence of state authority to enforce each of the NSA provisions or a collaborative enforcement agreement, CMS will directly enforce the NSA provisions,” Kolber and Rochman explain.

Tip: Since state consumer rights laws can vary significantly from federal regulations, providers must figure out how to implement the NSA provisions and ensure alignment with state requirements. This is not an easy task, but a necessary one, experts warn. “As the current landscape remains ripe with risk as the industry continues to grapple with overlapping — and sometimes incompatible — regulatory regimes, continued consciousness of state-level considerations remains paramount for stakeholders working to implement NSA compliance initiatives,” Retzinger and Boaz remind.

Resource: Find the CAA enforcement letters on the NSA provisions at www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/CAA.

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