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No Surprises Act Compliance: Expert Answers to your FAQ

November 22, 2021 by Experian Health

There are a number of topics that draw a full house for a webinar, but the recent “Unpacking the No Surprises Act” presentation produced by Experian Health was exceptional in its attendance. Participants listened intently to the general parameters and compliance criteria that make up the regulation and what it is intended to accomplish. More than 130 questions poured in during the 1-hour webinar and they were still coming in as the event closed. Read our blog to learn more about the No Surprises Act. 

Upcoming webinar: The No Surprises Act: Q&A with an expert

Register for our upcoming webinar on Dec. 15 to hear from industry expert Stanley Nachimson, Health IT Implementation Expert, who will help providers get up to speed on what they need to do to comply with the No Surprises Act. He’ll address the Good Faith Estimate, how NSA will apply in different care settings, and more.
Register now

The Big Takeaway: there are a lot of questions from across the spectrum of healthcare participants. We looked through those that were submitted during the webinar, pulled together the ones that were similar, and grouped them into categories. Then we asked the expert we’ve worked with to better understand the No Surprises Act – Stanley Nachimson, principal of Nachimson Advisors* – to shed more light on some of the most common inquiries.**

Experian Health is now offering a FREE comprehensive, updated list of No Surprises Act (NSA) payer policy alerts for United States hospitals, medical groups, and specialty healthcare service organizations.
Learn more

GENERAL SCOPE

Who does the regulation apply to? Insured? Uninsured?

The No Surprises Act is meant to protect the uninsured, self-pay patients and those covered by commercial insurance. It DOES NOT apply to government-reimbursed care, i.e., Medicare and Medicaid – essentially because balance billing is already prohibited by these payers. On the other side of the coin, the regulation generally applies to all providers of healthcare.

Is this restricted to “emergency care” and has emergency care been defined?

The regulation was established to make sure patients are only responsible for in-network charges related to emergency services or scheduled services, in any hospital.

As for the definition of “emergency,” the regulation defines that in the Prudent Layperson language, which defines an emergency medical condition as manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in: a) placing the patient’s health in serious jeopardy; b) serious impairment to bodily functions; or c) serious dysfunction of any bodily organ or part.

Does the No Surprises Act supersede state laws?

The federal regulation is the default in states where there are no similar laws to protect against balance billing. In states that do have laws addressing this, NSA takes priority when the state law provides less protection to the patient. Also, in states with No Surprise regulations already in place, the federal law defers to state law as to how much fully insured plans must pay a provider for surprise OON services, rather than requiring arbitration mandated by the federal regulation.

Is there an explanation of how this will be enforced?

Enforcement procedures are still being worked out, as several entities are impacted. Three levels of enforcement have been proposed:

  • State enforcement – states will have primary enforcement responsibility and CMS would step in for states that will not enforce the law or “fail[s] to substantially enforce” the law
  • Civil penalties (at $10,000 per violation)
  • Possible mechanisms that could initiate enforcement actions, which have been discussed, include patient reporting tools and market conduct investigations initiated by CMS.

OPERATIONAL IMPACT

What are the primary provider workflows impacted by the No Surprises Act?

The most impact will be around scheduling, estimates and producing a good faith estimate (GFE). The systems and solutions in place to determine eligibility and coverage will have additional pressure for accuracy. At this point, if necessary or desired, the mechanism for securing patient consent for OON services will come into play, too. The timing requirements of the law’s expectation of when a GFE will be provided put the front-end operations under a microscope. The “convening provider” challenge of which entity will be responsible for assembling the GFE is a major issue.  The convening provider must present the GFE in a standard format to either the health plan for insured patients; or to the patient in a manner that is clear and understandable stands to require substantial modifications to workflow. The most recent guidance from CMS states that there will be a one-year postponement in enforcing the rules, for uninsured patients, requiring a provider to get estimates from other providers involved in the care.

Are office visits included in the regulation? Radiology? Lab work?

It appears to be so. The industry is questioning the required range of services.  Any Advance Explanation of Benefits that contains out-of-network providers must include information on how to find in-network providers for those services.   This is definitely one area of the law that the healthcare community is looking to help shape.

Is there a best practice for identifying OON status?

Most providers should be aware of their network status for any health plan.  That is going to be a question answered at the medical system and very likely individual provider facility level. However, determining the network status of other providers may be a problem.  Most health plans have provider directories available for their members or on their websites.  There won’t likely be a “standard” other than the very clear expectation of the law that no one will be balance billed for any care received that is OON, unless that is consented to by the patient. The systems and communications with the payers and protocols required to meet this compliance standard are going to be unique to different facilities. It sounds oversimplified, but the best practice may be not to balance bill a patient for the care they receive without their consent.

SPECIFICS

Will there be standardized documentation provided by CMS and, if so, will they be required?

No matter the document format, there is a set of requirements for patient notices. These include:

  • A statement that the provider or facility is OON (if that is the case)
  • An itemized, good faith estimate of the cost of care
  • Information on prior authorization and utilization management limitations
  • The notice must be in a format the patient can understand and is accessible (i.e., preferred language and apart from other documents).

A variety of model forms and notices are available on the CMS “Overview of Rules and Fact Sheets” page:

Additionally, The Department of Labor published a Model Notice link on its No Surprises Act overview page.

Which entity is considered the “lead” and responsible for coordinating the GFE, consent forms and other documentation required to show compliance?

The “lead”, or “convening provider” entity is widely expected to be the scheduling provider but that has not been established officially. This is another of the areas where input is needed from multiple stakeholders.

What parts of the law have been postponed?

Good faith estimates to INSURED individuals have been postponed “until rulemaking to fully implement this requirement…is adopted and applicable.” The delay for insured individuals was the result of a general expectation that it is not possible for payers and providers to stand up necessary systems to achieve this by Jan. 1, 2022. The distinction was made that insured patients have means of recourse if they receive an incorrect estimate.

Similarly, advanced explanation of benefits (AEOB) is expected to be delayed until the data transfer systems and other requirements to provide an accurate AEOB to the patient are in place. It is expected that short-term remedies to this will be put into effect by HHS.

It is important to note that these delays in enforcement do not change the core of the rule, which prohibits balance billing of OON care and services that a patient is unaware of and does not consent to.

On-Demand Webinar: “Unpacking the No Surprises Act” – October 20, 2021

Listen in as Roger Johnson, VP of Payer Solutions at Experian Health, and Stanley Nachimson, Health IT Implementation Expert, help providers get up to speed on what they need to do to comply with the No Surprises Act in this 60-minute session. This on-demand webinar will help your organization make sense of the new regulatory requirements and provide strategic recommendations on how to prepare.
Watch now

*Stanley Nachimson is not an employee or representative of Experian Health.

**The scope and details of the No Surprises Act are evolving. The information provided here is up to date as of November 18, 2021.

This content is intended for information and education purposes only.  Experian Health cannot and does not provide legal and compliance guidance.  It is recommended that all organizations review the regulation thoroughly and seek appropriate legal and compliance guidance to determine an appropriate strategy for compliance. Experian Health offers solutions across the healthcare journey – including patient engagement, revenue cycle management, identity management, care management and analytics – that may contribute to meeting compliance requirements.

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