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No Surprises Act May Block Some Patients' Access to Care: Providers

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What You Need to Know

  • The No Surprises Act is supposed to reduce the odds that insured patients will end up with big, unexpected bills for out-of-network care.
  • Providers are supposed to give patients good-faith estimates of what the bills would be.
  • When an actual bill is $400 or more higher than the estimate, the patient can take the provider to dispute resolution.

The No Surprises Act — a new federal law that’s supposed to keep patients from getting big, unexpected medical bills — could keep some patients from getting care when they want to get care, and it could lead to a barrage of questionable disputes with others, doctors and hospitals are telling federal regulators.

One primary care doctor said the act may keep an insured patient who scheduled a checkup far in advance, and then loses coverage, from getting the checkup, even if the patient still wants the checkup.

An executive from a hospital group suggested that the current rules could lead to headaches for a surgical team that needs 15 more minutes than expected to complete a procedure.

Providers are sharing those concerns about No Surprises Act implementation in comments on “Requirements Related to Surprising Billing; Part II.” That’s one of the sets of regulations federal agencies developed to put the new law into effect.

What It Means

You may have clients who use health savings accounts or ordinary savings to pay for some medical care.

Even if you have no direct role in health insurance or health care cost planning, you should encourage those clients to be aware of the possibility of problems, see if they can talk to providers’ billing teams before getting care, and  try to communicate with surgical teams about what should happen if procedures take longer than expected.

The No Surprises Act System

In the past, many insured patients went to in-network hospitals, or to out-of-network hospitals for emergency care, and discovered that they had received high bills for care priced at out-of-network rates.

Congress put the No Surprises Act in the Consolidated Appropriations Act, 2021, in an effort to fix that problem.

Parts of the act require a provider to give a patient a “good faith estimate” of what the patient’s share of the bill will be.

If the actual bill is more than $400 higher than the estimate, the patient may be able to use a new dispute resolution system to dispute the bill.

The Part II implementation regulations appeared in the Federal Register on Oct. 7 and took effect on that date. They began to apply for health plan or health insurance policy years beginning on or after Jan. 1, 2022.

The regulatory team developing the regulations includes the Internal Revenue Service, the Office of Personnel Management, the Department of Labor’s Employee Benefits Security Administration, and the Department of Health and Human Services’ Centers for Medicare & Medicaid Services.

The Issues

Federal agencies issued the Part II regulations as “interim final rules with request for comments,” and the Centers for Medicare & Medicaid Services puts out new requests for comments when it creates or renews forms and other information collection efforts.

A provider who filed an anonymous comment noted that one problem is that the good-faith estimate rules and calculations are different for insured patients and self-paying patients, and that patients who have coverage when they schedule appointments may lose coverage by the time they come in for care.

“When they arrive for their appointment, to stay compliant with the act, because we have not provided them with an estimate and they have no ability to waive their right to an estimate, we believe we would have to reschedule the patient, until they could be given an estimate and have reasonable time to consider the estimate,” the anonymous provider wrote. “We would anticipate that the patient will be quite angry when that happens.”

Another issue is that a patient may describe one complaint when scheduling an appointment and talk about more complaints during the visit, the provider said.

“There is no fix for this issue when it comes to providing an accurate estimate even with the $400 buffer that has been established,” the provider asserted.

Shannan Flach, vice president for health care finance and reimbursement at the Kansas Hospital Association, said regulators need to change the trigger for dispute resolution eligibility to a percentage of the predicted bill, from $400.

Flach suggested that a 25% increase over the good-faith estimate might be a good trigger level.

Otherwise, Flach said, a high percentage of bills for expensive surgical procedures could go into dispute resolution processes, because $400 would be a small percentage of the total cost of those procedures, and even minor changes could lead to bill increases over $400.

“For example, a patient who is under anesthesia for surgery for 135 minutes instead of 120 would quickly surpass this figure, despite the $400 being only a minor amount of the overall bill,” Flach said.

(Image: Andrii Vodolazhskyi/Shutterstock)


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