The Implementation of the “No Surprises Act”: On your Mark, Get Set, Go!

As many of you may know, the “No Surprises Act” was ultimately included in the major omnibus bill that passed through Congress at the end of last year. This Act bans balance billing for out-of-network (OON) services starting in 2022 and establishes a back-stop independent dispute resolution (IDR) process to ensure that clinicians and facilities are paid appropriately for the OON services they deliver.

ACEP spent years advocating on behalf of you as emergency physicians and your patients to ensure that any legislation that would address surprise medical billing (SMB) would truly keep patients out of the middle of billing disputes and include a fair payment mechanism that would hold health plans accountable and ensure adequate reimbursement for OON services. While we ultimately believe that the “No Surprises Act” represents a mostly reasonable solution to this issue given how damaging initial Congressional proposals would have been for emergency physicians, it goes without saying that the devil is in the details—and therefore, our advocacy work continues! 

Like any major piece of the legislation, the details need to be hammered out through the regulatory process. The “No Surprises Act” calls on the Departments of Health and Human Services (HHS), Labor, and Treasury to implement the law in a couple stages—but in a relatively short timeline since the law takes effect in 2022. While all three Departments have specific responsibilities when it comes to regulating the healthcare industry, we believe that HHS, and more specifically the Center for Consumer Information and Insurance Oversight (CCIIO) within the Centers for Medicare & Medicaid Services (CMS), will take the primary role in drafting the regs. 

The law requires that the first reg be released in July and another major one by December. Thus, we have no time to waste to start diving into the different areas of the law and identifying potential issues and recommendations for CCIIO and other federal agencies to consider when drafting the regs. To help us comb through the legislation and develop a well-rounded advocacy strategy for the regulatory process, we at ACEP teamed up with the Emergency Department Practice Management Association (EDPMA)—a major trade association that represents both large and small emergency medicine (EM) group practices— and have formed a joint task force. 

The EM SMB Implementation Task Force includes experts on insurance, billing, and other aspects of the healthcare marketplace from both organizations. Further, members of the Task Force are part of groups or institutions that represent the full spectrum of emergency medicine practice structures: from small and independent “democratic” groups; to regional medium-sized practices; to large, national groups; and, finally, to academic centers. By including such a broad range of perspectives from across the house of emergency medicine, we truly hope to gain consensus on major policies that affect you and your patients and develop policy recommendations that are advantageous to all of you, regardless of how you are employed. 

So what issues are the EM SMB Implementation Task Force focusing on? The Task Force has broken up into five workgroups that, within the span of a few weeks, will be providing significant input on the following areas:

1. Determining appropriate definitions of “qualifying payment amount,” “recognized amount,” “initial payment,” and “denial of payment.” The ways in which these terms are defined in regulation are critically important to ensuring that you all are appropriately paid for your services, both initially and ultimately through the IDR process.
2. Better understanding how the new federal law interacts with existing state laws. Some states already have laws in place around SMB, and it is not entirely clear what rules all health plans (including self-employed or ERISA plans) must follow in these states once the No Surprises Act is fully implemented. 
3. Fleshing out specific billing and other administrative processes. The No Surprises Act includes a few new health plan and clinician requirements, and we want to make sure that they do not ultimately cause additional confusion to patients or burden to you. 
4. Developing recommendations for the implementation of the federal IDR process. There are numerous issues and policies to sort out regarding the IDR process, including: the definitions and weighting of the specific criteria that the IDR entity can consider; the batching of claims to allow multiple dispute items to be brought to the IDR entity jointly for a single determination; the 90-day “cooling-off period” in which clinicians and insurers are not able to engage in another IDR process once an initial IDR determination has been made; and the administrative and arbitration fees associated with the IDR process. 
5. Monitoring issues around the development of state all-payer claims databases (APCDs). The No Surprises Act provides funding to states to establish an APCD or improve an existing one. It will be important to track the development of these APCDs and how they choose to collect data and calculate the median payment rates for different payors.

I will keep you updated on the Task Force’s progress as the workgroups continue to work through these key issues. In concluding, I want to emphasize again how critically important the regulatory process will be. But rest assured that ACEP is ready to take it head on and has made it a top priority to ensure that this critical law is implemented in a way that will protect patients, while at the same time requiring health plans to appropriately reimburse you for the life-saving services that you deliver. 

Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.