December 23, 2021
About one year ago, Congress enacted and President Trump signed into law the No Surprises Act, providing new federal consumer protections against surprise medical bills. This legislation was included in omnibus legislation funding the federal government for fiscal year 2021 and providing stimulus relief for the COVID-19 pandemic. The new surprise billing protections apply to all commercially insured patients and to almost all out-of-network services where surprise bills are a common occurrence (with the main exception being ground ambulances). Public insurance programs like Medicare, including Medicare Advantage, and Medicaid already include protections from surprise bills. The No Surprises Act will officially take effect on January 1, 2022.
In preparation for the implementation of this new law, U.S. Department of Health and Human Services (HHS), the U.S. Department of Labor, and the U.S. Department of the Treasury ("the Departments") issued three interim final rules (IFCs) on the requirements related to surprise billing. SNMMI responded to the second interim final rule whose requirements:
- Establish an independent dispute resolution process to determine out-of-network payment amounts between providers (including air ambulance providers) or facilities and health plans;
- Require good-faith estimates of medical items or services for uninsured (or self-paying) individuals;
- Establish a patient-provider dispute resolution process for uninsured (or self-paying) individuals to determine payment amounts due to a provider or facility under certain circumstances; and
- Provide a way to appeal certain health plan decisions.
SNMMI strongly supports the goals of the No Surprises Act, including protecting patients from surprise medical bills, improving the availability of affordable, high-quality, in-network care, and developing a fair and impartial process for resolving provider-insurer payment disputes. Consistent with accomplishing these goals, the Society recommends the Departments provide certain important clarifications and/or modifications to the IFCs, as appropriate, for the following issues:
- The Departments should issue subregulatory guidance clarifying the scope of items and services deemed to be furnished “with respect to a visit,” particularly as these rules apply to out-of-network ancillary services that are ordered during a visit but furnished after an applicable in-network facility visit. Specifically, the Departments should clarify that ancillary services merely ordered or referred during an in-network “visit” but not furnished until a separately scheduled period of care occurring at a later point in time are not within the scope of the original “visit.”
- The Departments should establish rules to enhance the transparency and oversight around an insurer’s calculation of the qualifying payment amount (QPA) to ensure that it appropriately reflects the in-network market rate for the same or similar item or service.
- The Departments should amend the rules regarding the independent dispute resolution (IDR) process to appropriately reflect Congress’s intent that IDR entities consider all relevant considerations equally when selecting between the two parties’ offers, rather than presuming that the QPA reflects the appropriate out-of-network rate.
Our detailed recommendations may be found here. The Centers for Medicare and Medicaid Services' guidance documents on the No Surprises Act may be found here.