Senior Vice President of Business Development
We have continued to monitor the No Surprises Act and have established a plan for how Clariti, now an HST Pathways company, can help providers address the disclosure and consent requirements.
What makes things tricky is that this law is complex, broad, and a bit unclear as the rules evolve. It certainly lacks specific and essential requirements in areas that will be addressed in stages throughout 2022. It is also important to highlight that while hospitals, HOPDs, and payers are heavily highlighted in this bill, ASCs are not exempt from the requirements.
Please know the No Surprises Act is evolving, and we will update this post as needed. This information was last updated on: March 14, 2022.
Momentous changes are underway regarding provider and payor responsibilities and patient’s rights regarding patient financial responsibility. This article summarizes some of the aspects of this complex and broad law related to new requirements. We encourage our clients to understand how this may impact their operations and what steps need to be taken to be compliant by the end of this year.
In December 2020, both houses of Congress, with large bipartisan majorities, passed the Consolidated Appropriations Act, 2021. The law contains the No Surprises Act, establishing:
- Objectives and rules for eliminating surprise healthcare billing,
- Patient rights to clear and timely cost estimates in advance of care,
- Provider requirements related to disclosures and obtaining patient written consent for balance billing, and
- What rights and remedies patients have related to dispute resolution
This law has been a long-time in the making, fueled by broad legislative and public support.
In July 2021, the US Departments of Health and Human Services (HHS), Treasury and Labor, and the Office of Personnel Management issued an Interim Final Rule implementing portions of the No Surprises Act.
In September 2021, the parties issued a follow-up Interim Final Rule, providing additional details while seeming to shift more burden onto providers. This Interim Final Rule provided for a follow-up comment period, ending November 30th, and retained the original requirements of the law but noted that enforcement would be selective while more details and realistic deadlines were established.
Since then, the parties have issued clarifications and minor details while we wait for some last-minute information before January 1st.
How will hospitals, HOPDs, ASCs, surgeons, and anesthesia providers be impacted? Here are some items to consider, how Clariti will be assisting, and, where possible, we have included brief highlights from the law and CMS guidance. Also, it is essential to note that CMS is letting the states take the lead on additional regulations and enforcement, so please be mindful of your state’s requirements related to fair billing and cost transparency.
You must physically post in your facility and on your website disclosures regarding patient protections against surprise billing. Here is the link to the CMS model disclosures recommendations.
In addition, you must provide a disclosure to all scheduled patients, via paper or electronically, in advance of care. The disclosure must be in 12-point font and not more than two pages. Clariti is adding a customizable disclosure as a link in our electronic and printed patient estimate.
A provider or facility must disclose to any participant, beneficiary, or enrollee in a group health plan or group or individual health insurance coverage to whom the provider or facility furnishes items and services information regarding federal and state (if applicable) balance billing protections and how to report violations. Providers or facilities must post this information prominently at the facility’s location, post it on a public website (if applicable), and provide it to the participant, beneficiary, or enrollee in a timeframe and manner outlined in the regulation.
You are responsible for requesting and confirming the patient’s insurance coverage(s).
You will be responsible, at some point in the future, for notifying the payor(s) so the payor may provide the patient with an advanced explanation of benefits.
A health care provider or facility must inquire within a specific timeframe outlined in regulation and guidance if an individual who schedules an item or service is enrolled in a group health plan, group or individual health insurance coverage offered by a health insurance issuer, a Federal health care program or a Federal Employees Health Benefit plan. If so, inquire if an individual enrolled in a group health plan, group or individual health insurance coverage offered by a health insurance issuer, or a Federal Employees Health Benefit plan, is seeking to have their claims for such item or service submitted to plan. The provider or facility must provide notification (in clear and understandable language) of the Good Faith Estimate of the expected charges, expected service, and diagnostic codes of scheduled services.
Provide Patient Estimates
You must provide uninsured and self-pay patients with a Good Faith Estimate that follows HSS guidelines. The estimate must be physically separate from other documentation, support the most common fifteen languages, and you must have obtained the patient’s consent. Clariti’s estimate will meet these requirements, with some formatting adjustments coming soon.
You must provide patients with a Good Faith Estimate 72 hours before the scheduled service or within 3 hours for add-on cases. The Good Faith Estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities. For example, for a surgery, the Good Faith Estimate might include the cost of the surgery, any labs or tests, and the anesthesia that was used during the operation. If an item or service is something that is not scheduled separately from the surgery itself, it will generally be included in the Good Faith Estimate. Other items or services related to the surgery that might be scheduled separately, such as pre-surgery appointments or physical therapy in the weeks after the surgery, will not be included in the Good Faith Estimate.
Required Information in the Patient Estimate
- Patient Name
- Primary procedure description in “clear and understandable language.”
- Items/services “reasonably expected to be furnished for the period of care.”
- CPT, HCPCS, DRG, or NDC codes
- Diagnosis codes
- Scheduled services and expected charges
- Names of co-providers and co-facilities
- Facility name, NPI, tax ID, address
Include diagnostic, lab, and anesthesia providers in your estimate. The facility is responsible for confirming which co-providers participate with the patient’s insurance and providing the Good Faith Estimate. Clariti supports patient estimates that include surgeon fees, lab, diagnostic, and anesthesia services. Those providers must utilize Impact (Clariti’s core estimation product) to be eligible.
For out-of-network patients, you must determine the median contracted rate, which may be published by the state, or fall back to the complex calculations of the qualified payment amount. Review your Clariti out-of-network calculator to confirm the suggested allowable amount aligns with the median reimbursement levels for participating plans.
To protect patients from surprise bills and remove them from payment disputes between providers, facilities, or providers of air ambulance services and plans or issuers, the July 13th, 2021 rule established that, for emergency services and certain non-emergency services furnished by OON providers at certain in-network facilities, the patient pays a cost-sharing rate similar to that imposed in-network. The rate for this cost-sharing is calculated based on a state All-Payer Model Agreement, specified state law, or if neither of these apply, the qualifying payment amount (QPA).
You must retain copies of the patient estimates for seven years. Clariti will archive and make available all patient estimates.
For out-of-network cases, you can continue to balance bill above the median contracted rate. However, you must obtain the patient’s consent, in advance of care, following the CMS guidelines.
Prohibits OON charges for items or services provided by an OON provider at an in-network facility unless certain notice and consent are given. Providers and facilities must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an OON basis before that provider can bill the patient more than in-network cost-sharing rates.
For participating plans, you must provide a consent form to that patient. Clariti will be modeling the required CMS consent into our electronic and printed estimate. Patients will be asked for their electronic consent to acknowledge receipt.
In general, providers and facilities must give the disclosure notice to individuals who are participants, beneficiaries, or enrollees of a group health plan or group or individual health insurance coverage offered by a health insurance issuer, including covered individuals in a health benefits plan under the Federal Employees Health Benefits Program, and to whom they furnish items or services, and then only if such items or services are furnished at a health care facility, or in connection with a visit at a health care facility. Providers and facilities must provide the notice in-person, by mail, or via email, as selected by the individual. The disclosure notice must be limited to one page (double-sided) and must use a font size of 12-points or larger. Providers and facilities must issue the disclosure notice no later than the date and time on which they request payment from the individual (including requests for copayment or coinsurance made at the time of a visit to the provider or facility). If the provider or facility does not request payment from the individual, the notice must be provided no later than the date on which the provider or facility submits a claim for payment to the plan or issuer.
You must accurately disclose which plans you participate with and assist your payors with maintaining an accurate provider directory.
Independent Dispute Resolution (IDR) Process – While more details are forthcoming, please be aware that patients have the right to enter an IDR arbitration process if the provider and patient fail to negotiate a settlement for any patient responsibility more than $400 above the provided estimate.
Other Items to Consider
Gag orders commonly found in payer negotiated agreements that prevent providers from disclosing negotiated rates to comply with local, state, or federal requirements, or in a consumer-facing estimator, are not allowed.
You are required to refund overpayments in a timely manner.
Challenges to the No Surprises Act
Please note that the AMA and AHA have recently filed a lawsuit to block some elements of the No Surprises Act on the basis that the regulators overstepped the law and intent, particularly as it relates to payor negotiated rates and the impact that may have on negotiations and competition. There is some validity to their claim, and it will be interesting to see the outcome.
Many of the rules suggested in the No Surprises Act simply follow good business practices, and there is strong interest in expanding the Good Faith Estimate requirement to all insured patients, so we expect that to happen quickly.
Here is our recommended action plan: Create a Working Plan to Comply with the No Surprises Act in the Short-Term
- Please work with your management company, consultant, revenue cycle management company, and attorney to create an operational and compliance plan.
- Review your state’s fair billing laws to determine if they differ from the No Surprises Act.
- Work with your ancillary providers to be prepared to confirm their plan participation details and have a process to coordinate patient responsibility.
- Update your Clariti out-of-network calculator to be sure it reflects the median contracted rate.
- Use Clariti to provide a Good Faith Estimate to all patients, including those patients without a calculated patient responsibility.
- Post the required disclosures in your facility/office and on your website.
- Confirm your website clearly reflects which payors and plans you participate with.
- Educate your staff and co-providers on the new responsibilities.
- Follow our best practice recommendations and take advantage of the new software capabilities we will be providing.
- Appoint someone in your organization to monitor what is sure to be a number of changes and requirements related to the No Surprises Act in the year ahead.
- You can be sure a consumer-facing cost estimator requirement will be forthcoming. Utilize our Catalyst product on your website to accurately and quickly generate their own financial estimates. Catalyst has also been proven to cost-effectively increase case volume.
My team and I have had the good fortune of being able to focus on price transparency and patient engagement over the past five years, leading us to develop some of the most complex software we have ever delivered. It has been incredibly rewarding to provide patients with the accurate information they deserve well in advance of care while supporting our clients with improved efficiency, improved financial results, happier staff, and increased patient and surgeon satisfaction. We will continue to monitor the No Surprises Act and adjust our guidance and software to help our clients.
SVP, Patient Access
- CMS-9909-IFC: Requirements Related to Surprise Billing; Part I
- CMS-9909-IFC Fact Sheet: What You Need to Know about the Biden-Harris Administration’s Actions to Prevent Surprise Billing
- Model Notice & Consent Templates
- FAQ for CAA implementation, August 20th, 2021
- CMS-9908-IFC: Requirements Related to Surprise Billing; Part II
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