No Surprise Act Final Rule: What Anesthesia Groups Need to Know
SUMMARY: The federal government has just released new regulations that provide details for implementing provisions of the No Surprise Act. How will this affect anesthesia providers? Today's alert takes a look.
On September 30, 2021, the U.S. Department of Health and Human Services (HHS), along with other federal departments and agencies, issued an interim final rule (FR), which fleshes out and acts to implement provisions of the previously passed No Surprises Act (NSA).As you will recall, the NSA represents Congress's attempt to put an end to certain balance billing practices in out-of-network (OON) cases, with the intent of protecting beneficiaries from unexpectedly high medical bills. The law goes into effect the first of next year. This FR establishes the specific mechanisms by which the NSA will take effect. Among other items, it outlines a new federal independent dispute resolution process, good faith estimate requirements for uninsured (or self-pay) individuals, and a patient-provider dispute resolution process for uninsured individuals. We will provide a summary of each of these provisions, based in part on an interim final rule fact sheet recently released by the Centers for Medicare and Medicaid Services (CMS).
Independent Dispute Resolution
The IR establishes a federal independent dispute resolution process that OON providers and health plans may use to determine the appropriate OON rate for an applicable service should negotiations between the parties prove unsuccessful. Before initiating the dispute resolution process, the parties must have entered into a 30-day "open negotiation" period to determine a payment rate. In the case of a failed open negotiation period, either party may initiate the federal independent dispute resolution process.
The resolution process begins with the parties selecting a "certified independent dispute resolution entity." The parties would then submit their offers for payment to the selected entity, along with supporting documentation. After considering this information, the resolution entity will select one of the parties' offers as the OON payment amount. Both parties must pay an administrative fee ($50 each for 2022), and the non-prevailing party is responsible for the resolution entity fee for the use of this process.
Good Faith Estimates for Uninsured
When scheduling a medical service, providers and facilities are required to ask about the patient's health insurance status and their intent to have the claim submitted to insurance. The provider must provide a good faith estimate of expected charges for services to an uninsured (or self-pay) individual, meaning an individual that:
- Does not have benefits for an item or service under a group health plan, group or individual health insurance coverage offered by a health insurance issuer, federal health care program (as defined in section 1128B(f) of the Social Security Act), or a health benefits plan under chapter 89 of title 5, United States Code[7],[8]; or
- Has benefits for such items/services under a group health plan, group or individual health insurance coverage offered by a health insurance issuer, or a health benefits plan under chapter 89 of title 5, United States Code, but does not seek to have a claim submitted to their plan, issuer, or carrier for the item or service.
The good faith estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities. Here's how the CMS fact sheet puts it:
For example, for a surgery, the . . . estimate might include the cost of the surgery, any labs or tests, and the anesthesia that might be used during the operation. If an item or service is something that isn't scheduled separately from the surgery itself, it will generally be included in the good faith estimate. Other items or services related to the surgery that might be scheduled separately, like pre-surgery appointments or physical therapy in the weeks after the surgery, won't be included in the good faith estimate.
Does this mean that anesthesia providers are off the hook in providing these estimates to such patients since the facility is going to be providing the anesthesia estimate? The fact sheet doesn't definitively say; but you may want to err on the side of caution and consider providing an estimate of your anesthesia and related services (e.g., post-op pain, invasive lines, ultrasound, TEE) for these no-insurance patients. We will continue to watch out for details on this aspect of the 520-page FR as they emerge over the next few days and weeks.
Dispute Resolution Process
Where a no-insurance beneficiary receives a bill that is substantially above the good faith estimate, a patient-provider dispute resolution process is authorized by the FR for the purpose of determining the appropriate payment amount. According to CMS:
A patient's bill will be determined eligible for the patient-provider dispute resolution process if the patient received a good faith estimate, if the process is initiated within 120 calendar days of the patient receiving the bill, and if the bill is substantially in excess of the good faith estimate. HHS has defined "substantially in excess" as the billed charges being at least $400 more than the good faith estimate for any provider or facility listed on the good faith estimate.
"Select dispute resolution (SDR) entities" will make payment determinations as part of the resolution process. The dispute resolution process involves certain timelines for documentation submission and payment determination. In addition, participating individuals will be charged an administrative fee, which is set at $25 in the first year.
For the full 520-page FR go to:https://www.federalregister.gov/public-inspection/2021-21441/requirements-related-to-surprise-billing-part-ii.To access the full CMS fact sheet, you can click on the following link: Requirements Related to Surprise Billing; Part II Interim Final Rule with Comment Period | CMS.
If you have further questions about the NSA or its associated regulations, you can contact your account executive or reach out to us at info@anesthesiallc.com.
With best wishes,
Tony Mira
President and CEO