No Surprises Act Part 2

To recap, the No Surprises Act went into effect on January 1, 2022. The purpose of the Act is to prohibit “surprise billing” by providers for emergency services and inadvertent out-of-network services at in-network facilities (inadvertent services). The Act applies to all health plans, including self-insured plans effective on or after January 1, 2022, with limited exceptions (i.e., qualified small employer health reimbursement arrangements). The Act does not apply to out-of-network providers at an out-of network facility, Florida law applies in this scenario.  

Billing at an in-network cost share may not necessarily be a bad thing. When insufficient reimbursement or notice of denial is received, providers under the Act, are now entitled to challenge the determination through an independent dispute resolution (“IDR”) process. Through this process, it is possible to have 100% of disputed claims negotiated, versus one (1) or two (2) out of ten (10) disputed claims. It will also reduce not only the cost of appeals but appeals altogether.

Under the IDR process, a provider must initiate “open negotiations” within thirty (30) days of receipt of the payment or notice of denial. If open negotiations fail, then the IDR process is initiated within four (4) days of the end of the 30-day open negotiation period (open negotiations may still continue during the IDR process). IDR is initiated by issuing notice to the other party and the US Department of Health and Human Services (“HHS”) Secretary. The parties have three (3) business days from the initiation of the IDR process to jointly select the IDR entity (i.e., the arbitrator). If the parties fail to agree on the IDR entity, then the HHS Secretary shall select the IDR entity within six (6) business days from the initiation of the IDR process. After the IDR entity is selected, within ten (10) days from the selection, the parties must submit the amount(s) desired (their offer) along with any supporting evidence or documentation required. After the submission, the IDR entity must choose one of the two offer amounts.

In making its determination the IDR may consider:

1.     Information requested and received by the IDR entity;

2.     Qualifying Payment Amounts of the applicable year for comparable services in the same geographic region; and

3.     Other considerations, such as:

a.      Training, experience, quality and outcome measurements of the provider;

b.     The market share held by the provider for the geographic region;

c.      The acuity of the patient and complexity of the care provided;

d.     The good faith efforts of the provider to enter into a network agreement and, if applicable, contracted rates of the parties during the previous four plan years.

This is why it is important that providers keep their information up to date on their curriculum vitaes, publish articles, become a leader in the industry, offer quality and unique services, specializing in low populated field, keeping track of the outcome of cases and infection rates, before and after photos, as well as to submit a reasonable offer.

The IDR is prohibited from considering:

1.     Usual/customary charges for the service(s);

2.     The Billed Charges; and

3.     Reimbursement rates of public payors, such as: Medicare, Medicaid, etc.

The IDR entity then has thirty (30) days from its selection to make a determination. This determination is binding and not subject to judicial review (absent a fraudulent claim or evidence of misrepresentation of facts to the IDR entity). The Payor then has thirty (30) days from the determination to issue the required payment.

Additionally, the IDR process allows for claims to be bundled/batched, as long as:

1.     The services were furnished by the same provider or facility;

2.     Payment is required by the same insurance plan or issuer;

3.     The services are related to treatment of a similar condition; and

4.     The services were provided during the 30-day period from the date that the 1^st service(s) was provided.

Most importantly, to deter excessive use of the IDR process, payment of the IDR Entity’s Fees is paid by losing party (the party whose amount/offer is not selected by the IDR entity). There is an exception if the parties come to an agreement after initiating the IDR process (but prior to the determination), that each party will split the fees unless the parties agree otherwise. There is also a ninety (90) day waiting period from a determination that prohibits a party from initiating IDR against the same party with respect to such an item or service.

If an out-of-network provider wishes to avoid this IDR process, then the provider must satisfy the notice and consent requirements that were discussed above.  The IDR process also cannot be utilized if the services are an “ancillary service” (i.e. radiologist, anesthesiologist, pathologist) or there was no network provider available at the facility.

This process is not just available to providers, uninsured patients are permitted to initiate a dispute resolution process if they believe the amount actually billed was substantially in excess of the estimate issued by the provider of the facility on their notice.

Florida law will continue to be applicable (and is not superseded by the Act) with regard to state-established payment amounts and mechanisms for certain services. However, in many cases the Act may preempt/supersede many of Florida’s pre-existing laws, but it does not prohibit states from enacting and enforcing more restrictive protections.

Lastly, failure to comply with the Act will result in penalties of up to $10,000 for providers and facilities in violation of the requirements. The HHS Secretary will also establish mechanisms by which consumers and states can issue complaints or violation alerts. 

The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information and content in this article are intended to convey general informational only and may not constitute the most up-to-date legal or other information. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

Michael R. Lowe, Esquire is a Florida board-certified health law attorney at Lowe & Evander, P.A. Mr. Lowe regularly represents providers, physicians and other licensed health care professionals, and facilities in a wide variety of health care law matters.