Catherine Short speaks with Rachel V. Rose, JD, MBA, principal with Rachel V. Rose – Attorney at Law, P.L.L.C., Houston, TX, on the topic of “The No Surprises Act – What You Need to Know.” Effective January 1, 2022, the No Surprises Act has implications for patients, providers, and insurance companies alike. The impetus behind the legislation, as well as the regulations, is to prevent patients from receiving bills for certain services that were performed or delivered by providers out of their plan’s network. The scope is limited and providers and plans alike need to take steps to understand the appeal process when a payment or claim is challenged. The purpose of this episode is to provide a brief overview of the evolution of the United States’ healthcare system and its relevance to the No Surprises Act. From there, the No Surprises Act and regulations will be explained, along with the appeal process. Finally, compliance tips will round out the show.
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AI TRANSCRIPT – misspellings may occur
The No Surprises Act
surprises, providers, compliance, act, bill, IDR, lawsuit, patient, network, plan, states, party, air ambulance, individuals, payment, services, coverage, alternative dispute resolution, law, procedures
Catherine Short, Rachel V. Rose
Catherine Short 00:02
Welcome! and, let’s “1st Talk Compliance”. I’m Catherine Short, Partnership Marketing Manager at First Healthcare Compliance. Thanks for tuning in.
This show is brought to you by First Healthcare Compliance as part of our commitment to provide high quality complimentary educational resources. We help create confidence among compliance professionals throughout the United States. Please show your support by taking a moment to provide a review on Google, Facebook or iTunes. You can also follow us on Instagram, Twitter and subscribe to our YouTube channel.
Catherine Short 00:42
On today’s episode, we are speaking with Rachel V. Rose, JD, MBA, principal with Rachel V. Rose – Attorney at Law, P.L.L.C., Houston, TX, on the topic of “The No Surprises Act – What You Need to Know.” Effective January 1, 2022, the No Surprises Act has implications for patients, providers, and insurance companies alike. The impetus behind the legislation, as well as the regulations, is to prevent patients from receiving bills for certain services that were performed or delivered by providers out of their plan’s network. The scope is limited and providers and plans alike need to take steps to understand the appeal process when a payment or claim is challenged. The purpose of this episode is to provide a brief overview of the evolution of the United States’ healthcare system and its relevance to the No Surprises Act. From there, the No Surprises Act and regulations will be explained, along with the appeal process. Finally, compliance tips will round out the show.
Catherine Short 01:53
Before we begin, I would like to mention at First Healthcare Compliance we strive to serve as a trusted to resource for compliance professionals and every month we celebrate their hard work and dedication with our Compliance Super Ninja recognition. For this episode, we’re spotlighting Super Ninja Julie Garcia, Business Office Manager at Coastal Vascular Center. Julie says “Coastal Vascular Center has three office locations and yet the whole group works as a team. They all respond well to the compliance updates and changes. I am fortunate to have such a close knit, caring group of professionals to work with every day.” Congratulations Julie! Our team is honored to have the privilege of working with you.
Catherine Short 02:37
So thank you, Rachel, for joining me on 1st Talk Compliance. It’s a pleasure to have you on.
Rachel V. Rose 02:43
Oh, thank you, Catherine, it’s always my pleasure to collaborate with you and engage in another timely topic.
Catherine Short 02:52
Great. Can you tell me a little bit more about the no surprises act?
Rachel V. Rose 02:59
Absolutely. So the No Surprises Act is premised on surprise medical billing. And as many of us have experienced if we were treated, for example, in an emergency room or out of network in particular, meaning that we could have been out of the state skiing, and our network didn’t reach quite that far. And we needed emergency care through the emergency room and in particular, perhaps a knee surgery or we needed to have a compound fracture, fix something like that. The surprise medical billing is a receipt of different bills from different providers. And as we know, using the emergency room example, oftentimes, the facility sends a bill and then the emergency room physician may send a bill and then the radiologist sends a bill and then protect a particular sub specialists such as a cardiologist or an orthopedic surgeon may also send a bill. So the premise behind the no surprises Act is that they wanted to eliminate the undue hardships being placed on individuals who are the recipients of these bills. And as you can imagine, from a practical standpoint, oftentimes if a person doesn’t pay the bill, it gets sent to collections and can have an impact adversely on their credit report. So all of those factors led to the passage of the no surprises Act, which is part of the Consolidated Appropriations Act, which was signed into law on December 27 of 2020 and became public law 116 dash 260. So this was part of a larger it was as part of our law. Absolutely. And the way I like to analogize this is, is you know, the HITECH Act is a title in the American Reinvestment and Recovery Act of 2009. That’s the easiest way to analogize the Consolidated Appropriations Act in the no surprises act.
Catherine Short 05:28
What led to Congress passing the no surprises act?
Rachel V. Rose 05:32
So as the September 7 2020, ABA article indicates and as we see being carried through into Title 1, which is known as the no surprises act, it’s surprise billing and the shock of getting a bill, which is exorbitant.
Catherine Short 05:55
Why do you think they didn’t pass something like this previously? Why did they pass this now?
Rachel V. Rose 06:02
I think there are a multitude of reasons. I think, first and foremost, some states already had similar laws in place, although as of December 2021, there were 17 states that did not have these types of protections for individuals. Another reason is the escalating cost of health care. And I do believe that COVID was a factor in that as many individuals were hit is we know, with hospitalizations, and really expensive care. And so I think that is another reason why this reemerged to the forefront. Obviously, this is something that people consumers, and some providers as well have been talking about and dealing with for several years. So the concept itself is nothing new. But I really do think that escalating healthcare costs COVID-19. And the gap in state laws is what led to its passage at this time.
Catherine Short 07:22
Why do you think they made it a federal law instead of just keeping it for states to decide for themselves?
Rachel V. Rose 07:29
I think that the overarching issue, again, is for those who may want to go and listen to the webinar that we did, where I did the history of the US health system and how our health insurance landscape evolved. Along those lines, we see a couple of items A, we see the Federal Employee Health Benefits Program being impacted by the no surprises act. And we also see government programs as well. Additionally, a lot of health plans spanned over more than one state. And that’s an area I think that is notable, as well as to why it became a federal law and wasn’t left to the states. I think you’re exactly right, given the gap of 17 states, which is pretty significant. That’s still about 1/3 of all states didn’t have any protection for its state citizens.
Catherine Short 08:36
Were those 17 states in one particular area? Are they scattered?
Rachel V. Rose 08:41
They were scattered in they include regions, Alaska and Arkansas. It’s it’s really all over the board.
Catherine Short 08:50
All right. Okay, yes. And I liked your illustration about, of course, when you’re on vacation, and a lot of us do travel and, of course, skiing is a great example. And that’s a risky sport, as both you and I know and some anything can happen. Or if you go to the beach and you’re surfing or whatever, you know, something could happen, who knows and you don’t want yeah, of course, some some surprise awful bill to happen. So very good. Okay. So, let me see what the next question that we had come up. Are there any other types of services that are covered other than emergency services, non emergency services from non participating providers at participating facilities and air ambulance service from non participating providers?
Rachel V. Rose 09:43
Could you repeat that one more time please?
Catherine Short 09:46
Yes, yes. So are there any other types of services that are covered? Other than emergency services such as non emergency service from non participating providers at participating facilities and things such as air ambulance service from non participating providers. So it’s kind of like opposite type of things.
Rachel V. Rose 10:15
Absolutely. And that’s what I utilize the rule of threes throughout this presentation, because it’s so important to appreciate that the no surprises bill not only applies to emergency settings, we also know that it does not apply to urgent care centers. So if you’re going into an urgent care center, the law doesn’t apply to those. We also know that if you go into a provider network, and you’re treated by a non in network provider, that that non in network provider cannot balance Bill either. And then finally, as we saw and was articulated in the comments, as well as the A B A’s article, and quite frankly, a lot of legislative hearings or hearings before Congress, basically, air ambulance surprise billing can be in the hundreds of 1000s of dollars. So yes, that is one reason that air ambulance services in particular were included as part of the no surprises act.
Catherine Short 11:27
Okay, when you say you said urgent care centers is that you’re talking about those standalone ones that you find on the highway? Or are you talking about ED departments?
Rachel V. Rose 11:39
Well, I think that that’s a great question, because we see like, the Minute Clinics, right, or I live in Houston, and the age some of the AGV supermarkets have urgent care associated with them. And so I think it depends on the facility and how they’re designated. But that’s something you really need to ask. I know, personally, I’ve gone to freestanding ERs that are not connected with a health system in the Houston area. And I’ve learned that my insurance that was definitely out of network, but because it was considered an urgent care center, it would not fall under this balance Bill protection either. So it’s gonna be a case by case basis. And if you’re unsure ask when you go into that facility.
Catherine Short 12:36
Okay, and what’s the can you explain one more time about the air ambulance? What’s so what’s the deal with air ambulances again?
Rachel V. Rose 12:43
Well, air ambulances, as we know, are typically used in severe trauma situations, whack uation situations, whether it’s a significant car accident on an interstate or sometimes with hiking or those types of and with the air ambulance, you should have that provision in your contract. And the same parameters that apply to emergency services really apply here with air ambulance services, too. So if you’re, and I’m making up this number, if your health insurance plan pays $10,000, right for that type of service, and the cost that is billed by the air ambulance company is $100,000. They cannot balance bill you for $90,000 as a patient. Okay. So again, similar to being on vacation, right, being completely out of network and needing that emergent care. And typically, if you’re in an air ambulance, you’re not conscious, anyhow.
Catherine Short 13:51
True. True. I guess I’m just thinking about those kind of like awful situations of you know, what if you’re in I guess it would depend on if you’re in, let’s say, the Caribbean or something. And I guess it would depend on if you’re at maybe Would it depend if you’re at, say US Virgin Islands versus I guess, the Bahamas? I mean, I guess I’m getting into the weeds obviously.
Rachel V. Rose 14:16
That’s an excellent question. And I recently traveled internationally. And I actually one country required air evacuation coverage. And I actually have separate air vac coverage and I’ve had it for years in the event that something were to happen while I was out of the country. The key here is to read your plan because as you know, it may say it applies to the continental United States and Territories, or it might apply to all 50 states and the District of Columbia. You really need to read and see what the parameters are. because how often does another country except a US health plan insurance, right, unless you’re in an HCA Hospital in London, that may already have that infrastructure set up right University of Pittsburgh Hospital in Italy, where they have a brand tour at Mayo Clinic in Dubai, I think those may be your exceptions. But in general, I think that you need to have a plan that’s going to cover some type of air back and make sure that your plan does before you go abroad.
Catherine Short 15:37
Right, yeah, because those situations, I mean, the situation where you have a US hospital abroad is extremely rare few and far between. So you would have to have some kind of coverage, some kind of outside coverage, I would assume.
Rachel V. Rose 15:53
Exactly. And as you know, a lot of our column higher end credit cards have that coverage available. It just depends on your card and whether or not you can buy that as part of trip insurance or whatever it is there. There are ways around it. But absolutely, you have to reach your EOB’s and just having done that in August, I noticed that mine did not cover International, air evac. So like I said, I’ve had a different plan for years because of that.
Catherine Short 16:28
If you’re just tuning in, you’re listening to 1st Talk Compliance brought to you by First Healthcare Compliance as part of our commitment to provide high quality complimentary educational resources. We help create confidence among compliance professionals throughout the United States. My guest today is Rachel V. Rose, JD, MBA, principal with Rachel V. Rose – Attorney at Law, P.L.L.C., Houston, TX, on the topic of “The No Surprises Act – What You Need to Know.” Please show your support by taking a few minutes to provide a review of First Healthcare Compliance on Google or Facebook. You can also follow us and subscribe on all forms of social media.
Catherine Short 17:13
I have a question about independent dispute resolution, IDR. Can you tell us what that is first? And then how does the process work?
Rachel V. Rose 17:23
Absolutely. IDR is a form of alternative dispute resolution. As we know, historically, we think of alternative dispute resolution as mediation, or arbitration. And IDR it can be thought of is a form of alternative dispute resolution. But here, it’s called independent dispute resolution. And the Federal Register outlined the steps for this IDR process. I think it’s important to note that for those individuals who have ever read their explanation of benefits, as a consumer, we have a right to appeal a denial of coverage, right, or we have a right to appeal a charge. So the underlying concept of this RDR is not far fetched. In fact, it’s based on decades of similar processes being in place. But what’s important for providers who fall under the umbrella of the no surprises act is they want to make sure that they have the IDR process defined in their policies and procedures, because there are timeframes that need to be met or that opportunity is lost. So basically, the initiating party sends a required form with sufficient information to identify the disputed services within 30 business days from the date the provider or facility receives initial payment or denial of payment. This 30 business day open negotiation period enables the parties to negotiate an agreed rate by the last day and if an agreement is not reached, then either party may initiate IDR to initiate IDR. Within four business days following that 30 day period, a party submits a notice through the federal rd our portal which is a public website maintained by CMS, the initiating party must do the following identify its preferred certified IDR entity and include material information about the dispute including the qualifying payment amount, the Q PA is basically the plan or issuers median in network rate. Now why CIDR is selected within 10 business days, the parties each submit a respective offer for a payment amount expressed both as $1 amount and as a percentage of Q PA. A description of the party is also required. So for example, a providers practice size and specialty, other information may be submitted. However, there are also exclusions, such as the Medicare fee schedule. So within 30 days after the IDR entity selection, the IDR entity must select one of the offers submitted and are required to choose the offer closest to the queue pa unless additional material information on a variety of different subjects such as market share in relation to the relevant geographic region is provided. So that’s pretty much the process in a nutshell, and why it’s imperative to have it outlined in policies and procedures.
Catherine Short 21:06
Administration must really pay close attention to the specific timeframes that are associated with the process, which should be outlined in their policies and procedures.
Rachel V. Rose 21:19
Absolutely. It’s no different than if you are filing a lawsuit or if you’re the recipient of a lawsuit, right under this rules, or Federal Rules of Civil Procedure, you have to get certain things in by certain dates. Otherwise, you either waive it, or you have to ask for an extension. And typically you have to meet and confer with the other party in order to put that in front of the court. So something similar,
Catherine Short 21:46
Right. Have any lawsuits been filed, objecting to the no surprises act?
Rachel V. Rose 21:56
Have any lawsuits been filed objecting to the no surprises act? That is actually a great question. And if you think about it, and I’m gonna play devil’s advocate here, what entities do you think, would file a lawsuit?
Catherine Short 22:21
I would think insurance companies.
Rachel V. Rose 22:24
Absolutely. And not only insurance companies, but also the American Hospital Association, and the American Medical Association, and the premise of these lawsuits. It’s kind of interesting. It’s premise, the premise e’s are that it jeopardizes access to care. And if you think about it, it seems counterintuitive. But basically, these lawsuits are challenging a narrow but critical provision of a rule that, as we know, was issued September 30, of 2021. by the US Department of Health and Human Services and other government agencies. These specific provision being challenged implicates the arbitration process for determining fair payment. So again, this IDR process that we just talked about, before determining fair payment for services by out of network providers, and effectively up ends the requirements specified in the no surprises act.
Catherine Short 23:35
Can you expand just a little bit more on that?
Rachel V. Rose 23:38
The lawsuit was filed in the United States District Court for the District of Columbia. And basically it says that the new rule places a heavy burden on the scale of an independent dispute resolution process unfairly benefiting commercial health insurance companies. So what the American Hospital Association said, again, it goes back to the public policy, no patient should fear receiving a surprise medical bill. So that’s not an issue here. And that is why hospitals and health systems supported the no surprises act to protect patients and keep them out of the middle of disputes between providers and insurers. So the law itself, they’re saying Congress carefully crafted the law with a balanced patient friendly approach, and it should be implemented as intended. So does that make sense? The disconnect is this narrow, final or interim final rule that was issued dis on September 30 of 2021 by HHS.
Catherine Short 24:51
That does make sense. Well, do you have any other advice for our listeners, any, anything that you might have thought of? Anything that we didn’t cover? Any surprises, perhaps that we didn’t cover? We could discuss this for a long time, so many different types of scenarios. But I think we better wrap up at the moment.
Rachel V. Rose 25:14
No, I think the lawsuit is one to watch as that relates to the ADR process. And I think that for providers having the appropriate policies and procedures, as well as health insurance companies, just understanding what they can and can’t do making sure that if something is out of network, and there’s an obligation, not in an emergency situation, or anything, that they give the notice to the patient that this is out of network, and you’ll incur a higher rate if you choose to go this route, right. But if the patient is provided with that, notice, just as Medicare patients have to be provided with that, notice, if it’s a service that’s not covered by Medicare, then it’s up to the individual patient to make that choice themselves. They just need all relevant information before they make that choice. I think one key is the policies and procedures and training of all of those individuals who are involved in this process. Because you need to have your plan B in terms of claims to missions, like I mentioned before, but also you want to make sure that you’ve worked with your EHR in your claims clearinghouses to make sure that they have their systems set up so that they’re not doing the balance billing as well. And finally, in those policies and procedures, making sure you have that IDR outlined to who you want to use, you want to make sure you have the link to the CMS website in there, that gives you that portal and that you have the dates and timelines in there so that you can check that off in the event that it needs to be utilized.
Catherine Short 27:11
Okay, great. Well, I wanted to thank you so much for being here. I very much appreciate it.
Rachel V. Rose 27:17
Well, thank you. And I look forward to our next one. It’s always my pleasure to collaborate with you and first healthcare compliance.
Catherine Short 27:28
Thank you. It’s, it’s our extreme pleasure also. So I look very much forward to our next collaboration. So thank you so much for being here.
Rachel V. Rose 27:36
Thank you, Catherine.
Catherine Short 27:37
Thank you. And thanks to our audience for tuning in to 1st Talk Compliance. You can learn more about the show on the programs page on HealthcareNOWRadio.com.
And lend your voice to the conversation on Twitter at @1sthcc or hashtag #1sttalkcompliance. You can also email me at email@example.com. I’m Catherine Short of First Healthcare Compliance. Remember, compliance is key to achieving peace of mind.