Evolving No Surprises Act Requirements Continue to Be a Heavy Lift — Here’s How Healthcare Providers and Facilities Can Remain Diligent

Caroline Znaniec, Managing Director Healthcare Revenue Cycle Solution Leader

The aptly named No Surprises Act (NSA), signed into law in December 2020 with an implementation deadline of January 1, 2022, is meant to help protect patients from financial hardship due to surprise medical bills. Such bills are often the result of patients receiving emergency or nonemergency services from providers that don’t participate in their health plan’s network. Patients become aware of an issue only when they’re hit with a hefty bill for those services, which their health plan won’t cover.

What isn’t surprising about the NSA itself is that meeting its requirements is an arduous task for most healthcare providers and facilities. The NSA continues to evolve, and because it’s an interim final rule, some of its requirements have been delayed while others are enforceable. The NSA assigns enforcement of the law’s requirements to the states but also calls for federal enforcement when necessary. Healthcare providers could face monetary penalties of up to $10,000 for each violation of NSA regulations.

The pressure is on for providers and facilities not only to stay on top of these requirements, but ideally also to get ahead of them. Providers and facilities shouldn’t underestimate how much time and effort will be needed to meet these demands, particularly when it comes to gathering information from co-providers and co-facilities to create good faith estimates (GFEs).

Understanding the NSA and its requirements is an important starting point for healthcare providers and facilities preparing to comply with the law. With that in mind, the following is a high-level overview of two key parts of the NSA — prohibitions on balance billing and GFEs.

Part I — Prohibitions on Balance Billing

Balance billing refers to billing a patient for an unexpected balance — aka “surprise billing.” Under the NSA, hospital facilities, emergency departments (including freestanding ones), ambulatory surgery centers, urgent care centers (those licensed to provide emergency services), air ambulance services and providers servicing the facilities mentioned are prohibited from billing patients more than the in-network cost-sharing amounts for surprise medical bills. The NSA also requires private health plans to cover out-of-network claims and apply in-network cost-sharing.

Here are three scenarios where an individual would be likely to receive a balance bill for care:

  • Receiving emergency services from an out-of-network provider or out-of-network emergency facility
  • Receiving covered nonemergency services from an out-of-network provider delivered as part of a visit to an in-network healthcare facility
  • Receiving covered air ambulance services provided by an out-of-network provider of air ambulance services

To determine the applicability of the NSA and the ability to balance bill, the following information is required:

  • Service need: Is the service emergent or not?
  • Type of facility: Is the facility included in the NSA provisions?
  • Network status: Is the facility/provider in or out of network?
  • Type of service: Is the service provided “ancillary” (for example, the presence of an assistant surgeon during a procedure)?

In some limited situations, known as “notice-and-consent exceptions,” the NSA allows for out-of-network providers and facilities to seek written consent to voluntarily waive their protections against balance billing when services include post-stabilization or nonancillary, nonemergency services.

When an exception doesn’t apply, an emergency facility or provider can’t bill an individual for an amount exceeding in-network limits or hold an individual liable for paying an amount exceeding in-network limits. In-network limits are determined by the payer through an all-payer agreement, equivalent state law, or the calculation of a qualifying payment amount (QPA).

Part II – Good Faith Estimates (GFE) for the Uninsured

Under the NSA, providers and facilities must provide uninsured or self-pay patients with a GFE that includes expected charges for:

  • Scheduled or requested items and services
  • Items and services reasonably expected to be provided along with a primary item and/or service

Unlike the hospital price transparency rule, GFE requirements aren’t limited to certain facility and provider types. They apply to all licensed healthcare facilities and providers. Currently the requirement for GFEs is enforceable for the uninsured or self-pay patient population, with anticipated expansion to all patients (insured or not) slated for implementation and enforcement in future rulemaking.

There are also several additional requirements for GFEs, including the provision of a GFE in written form (paper or electronic) based on a patient’s requested delivery method and within required time frames, and the use of clear and understandable language in the GFE.

Of the NSA’s two key parts, GFE compliance requirements have shown to be the most challenging for healthcare providers and facilities — specifically, the requirement for collecting information from multiple, disparate sources, including co-providers and co-facilities outside of the care network. And while there are technology tools that can help to manage this process, no one solution can eliminate all the manual work and resources involved in gathering the information needed to create accurate and timely GFEs for patients.

NSA Compliance: Strategies for Success

The inability to create accurate and timely GFEs or inaccurately balance billing a patient can drive patients into a dispute resolution process — and lead to increased costs and lost revenue for providers and facilities. As the Centers for Medicare and Medicaid Services explains on its website, the NSA “establishes an independent dispute resolution (IDR) process for payment disputes between plans and providers and provides dispute resolution opportunities for uninsured and self-pay individuals who receive a medical bill that is substantially greater than the good faith estimate they get from the provider.” “Substantially greater” is defined as $400 in excess of the estimate provided. Due to individual patient needs at the time of care, providers and facilities can easily be at risk for billing “in excess.”

To comply with the NSA, generally, and reduce the risk of bottom-line-eroding billing disputes with patients, providers and facilities must be prepared to, among other things:

  • Understand how individual state laws coincide with federal requirements
  • Identify scenarios where balance billing is/is not appropriate, including the provision of ancillary services
  • Identify out-of-network payers, co-providers and co-facilities, and understand their potential impact to the billing of services and the preparing and monitoring of GFEs
  • Determine the minimum acceptable QPA for items and services
  • Develop means to identify whether minimum acceptable payments are met
  • Outline processes for initiating open negotiations and dispute resolution processes with payers
  • Educate internal and external stakeholders to support simplified and standardized workflows
  • Explore the use of technology to automate processes, create documentation, integrate disparate data sets and set up effective communication workflows
  • Monitor successes to identify repeatable best practices and areas for improvement

Providers and facilities will also need to set up a multidisciplinary group to manage NSA compliance. This team should consist primarily of revenue cycle leadership but may also include stakeholders from customer service, financial advocacy, patient access and managed care. It’s essential for providers and facilities to also consider the impact of dedicating staff to this work, as it will take them away from other priorities. Many providers and facilities have discovered this ripple effect with teams tasked with helping the organization to comply with former President Trump’s Executive Order 13877, Improving Price and Quality Transparency in American Healthcare to Put Patients First.

By taking a structured approach to NSA compliance, healthcare providers and facilities will be better positioned to manage the heavy lifting involved in meeting the law’s requirements as delayed requirements become enforceable. And by being proactive, they can avoid being “surprised” by a mountain of complex work while facing NSA compliance deadlines. As an immediate starting point, providers and facilities may want to consider working with a third party to help them identify potential obstacles to NSA compliance success, including data integration challenges, ineffective workflows, and potential data security and data privacy issues that may arise when handling sensitive patient data.

To learn how Protiviti helps healthcare organizations mature their compliance functions, visit this page on our website.

Don Billingsley, Protiviti’s Healthcare Provider Revenue Integrity Lead, and Joe O’Malley, Protiviti’s Electronic Medical Record Optimization Solution Lead, contributed to this content.

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