Effects of No Surprises Act in Year One
What comes next for ASCs
BY ALEX TAIRA | NOVEMBER 2022
Per the No Surprises Act (NSA), the US Department of Health & Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) will begin enforcing the full scope of good faith estimates (GFE)—the inclusion of data elements from co-providers and co-facilities—on January 1, 2023. ASCs will likely most often be considered a co-facility. Ancillary providers such as anesthesiologists or pathologists also will most often be considered co-providers. However, it remains unknown what process will be used for enforcement or if there will be a process to show that an effort was made to collect all required data elements.
Providers, including ASCs, found in violation of the NSA GFE requirements could be subject to penalties up to $10,000 per violation. ASCA is watching for the eventual expansion of GFEs to insured patients—currently only required for self-pay or uninsured patients—although a timeline on that requirement is still unclear.
Major new regulations related to surprise medical billing went into effect on January 1, 2022. The regulations came from the NSA, a bill passed as part of the larger Consolidated Appropriations Act, 2021 (CAA) in December 2020.
Overview of NSA Requirements
The NSA established new protections for patients in three main circumstances: (1) when receiving emergency services from out-of-network (OON) providers, (2) when receiving elective services from OON providers at in-network facilities, and (3) when receiving care based on an inaccurate provider network status. In general, the scenario most relevant for ASCs will be scenario 2, as patients might schedule an elective procedure at an in-network ASC but receive services—such as anesthesiology, pathology, etc.—from an OON provider as part of their procedure. Patients do not receive any NSA-related protections if the ASC itself is OON. The NSA also established certain new protections for uninsured or self-pay patients, most notably the ability to request and receive a GFE of expected charges. And finally, the NSA established new processes for resolving payment disputes between providers and payers.
ASCs should have already undertaken certain administrative-related requirements to be compliant with NSA provisions. This includes providing patients with a disclosure notice regarding state and federal surprise billing protections and posting that notice in the facility and on a publicly available website, if applicable.
ASCs also should be familiar with the process for providing GFEs to uninsured or self-pay patients. Information regarding the availability of a GFE also must be displayed in the facility and on a publicly available website. When scheduling a procedure, the facility should ask the patient whether they plan to have the procedure claim submitted to their health insurance coverage. This may not happen often for certain ASCs. If the patient does not have coverage or does not plan to have the claim submitted, then ASCs should inform the patient both orally and in writing of their ability to receive a GFE of expected charges. The following is a list of data elements required as part of a GFE.
The NSA categorizes the provider or facility that schedules the procedure as the “convening provider” or “convening facility.” The convening provider or facility is the entity responsible for gathering the data elements for the GFE. In most cases, the expectation is that this responsibility would fall to the physician or the physician’s office, but an uninsured or self-pay patient also can request a GFE from an ASC that they are receiving service at directly. The NSA considers other providers or facilities that are involved in the procedure but not the convening provider/facility as a “co-provider” or “co-facility.” For 2022, HHS has stated that GFEs do not need to include data elements from co-providers and co-facilities. However, starting on January 1, 2023, GFEs will need to include all charges for items and services that could be expected to be provided with the primary procedure, including items or services from co-providers and co-facilities.
NSA Legal Challenges in 2022
HHS released the new regulations pertaining to the NSA throughout 2021, primarily through two interim final rules (IFR) in July and October. Interim final rules allow a federal agency to bypass the process of proposing a policy and receiving stakeholder feedback via comments. The provisions of the two IFRs became active policy on January 1, 2022. This led to a flurry of legal actions against HHS, with the most notable case brought by the Texas Medical Association (TMA). TMA challenged the use of the qualified payment amount (QPA), which HHS had defined as the median in-network rate for a geographic area as the basis for settling rate disputes between providers and payers. In February 2022, a federal district court judge in Texas sided with TMA, vacated certain provisions of the NSA IFRs and ordered HHS to revise the polices. HHS responded with a new final rule with revised policies governing the independent dispute resolution (IDR) process in August 2022. The IDR process will not be relevant to ASCs.
What to Watch for in 2023 and Beyond
The GFE requirement will expand, although the exact timeline is yet unknown. Per the NSA bill text, GFEs also are required for insured patients but HHS decided to delay implementation of that provision due to lack of technical and procedural standards for transfers of information between providers and payers. However, in September 2022, CMS released a request for information (RFI) that asked a wide range of questions regarding GFEs for insured patients. The questions covered technical standards, privacy concerns and provider burden questions. The RFI signals that formal policies implementing the GFE requirement for insured patients are not close to release, but ASCA does expect rulemaking in the future. ASCs will be subject to providing GFEs to insured patients when that rulemaking does occur.
CMS has developed a No Surprises Act page that includes resources for providers. ASCA also has posted an NSA page with policies and resources relevant to ASCs (members must log in to view).
Review the requirements related to surprise billing in this July 2021 Digital Debut article. Find out more about the No Surprises Act and its impact on ASCs in this March 2021 Advocacy Spotlight.