Both payers and providers are seeking some relief on the quick turn-around of the No Surprises Act, which is supposed to become effective January 1, 2022. And with the recent announcement of delays to certain portions of the Interim Final Rules implementing the surprise billing provisions of the act, it seems like the Biden administration is listening.
Timeline Concerns
According to Healthcare Dive’s Shannon Muchmore, payers are seeking a reprieve until 2023 on their requirements to determine payment amounts to out-of-network providers. They also are seeking clarification on the resolution process, along with providers, and say the January 1 start date is too soon.
Hospitals also are asking for a little more time, proposing to move the January 1, 2022, effective date to at least six months after the COVID-19 public health emergency (PHE) ends. The COVID-19 PHE is currently slated to end October 20, 2021, though many experts expect it to be extended with the current Delta variant surge.
During the comment period of the first Interim Final Rule released back in June, both payers and providers have requested clarification on numerous other issues as well, including how good faith estimates of costs should be calculated on consent forms patients may sign to waive balance billing protections and when a provider can bill a patient if their claim is denied by the plan.
Additional rulemaking specifically around the issue of the independent dispute resolution (IDR) process is expected later this year, but according to Muchmore, “Payers and providers both argued in their comments that without more information on that process, it is hard to prepare.”
Good Faith Estimate Reprieve
In an FAQ document about the Affordable Care Act and Consolidated Appropriations Act, 2021, Implementation Part 49, the Departments of Labor, Health and Human Services (HHS), and the Treasury recently announced some delays to parts of their Interim Final Rules for surprise billing.
According to Brandon W. Shirley and Grant M. Achenbach of Krieg Devault, the delays primarily affect the insurance industry, with clarification on issues like transparency in coverage machine-readable files, price comparison tools, and provider directories. However, health care providers will also see a delay in enforcement of the No Surprises Act’s good faith estimate requirements.
Based on the Interim Final Rule released back in June, good faith estimates of expected charges and relevant billing and diagnostic codes for all scheduled items or services must be sent to a patient’s health plan if they have out-of-network insurance or directly to the patient if they are uninsured beginning January 1, 2021.
For insured patients, however, HHS recognizes “the complexities of developing the technical infrastructure for transmission of the necessary data from providers and facilities to plans and issuers” and that “compliance with this section related to individuals who are enrolled in a health plan or coverage and are seeking to have a claim for the scheduled items or services submitted to the plan or coverage is likely not possible by January 1, 2022.” While the effective date will not be changed, HHS will defer enforcement of the good faith estimate requirement for insured individuals until future rulemaking can fully implement this requirement.
HHS does intend to issue regulations implementing good faith estimate requirements for uninsured individuals prior to January 1, 2022, and begin enforcement as scheduled, however. While HHS believes “insured consumers have existing recourse to challenge out-of-pocket costs through the internal claims and appeals and external review process described under existing law and regulations,” uninsured consumers “would be without enforcement by the CAA’s statutory deadline.”
For Hoosier providers, Indiana has its own good faith estimate laws that require providers to provide a good faith estimate when requested. The law also requires a patient’s consent to charge out-of-network rates to patients at in-network facilities. While the federal delays do not affect these laws, Indiana’s good faith estimate laws were recently changed to require providers to adhere to the No Surprises Act’s good faith estimate requirements beginning January 1, 2022, which according to Shirley and Achenbach, “raises compliance challenges for Indiana providers.”
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