Recently enacted legislation, the No Surprises Act (NSA) has restricted surprise medical billing for health plan participants who receive services at out-of-network (OON) health provider facilities in emergency contexts. The legislation also restricts surprise medical billing for services provided by providers at in-network facilities and includes protections involving air ambulance services. Now in effect, the NSA’s surprise medical billing rules impose extensive compliance obligations on health plans and insurers and, derivatively, their third-party service providers.
Effective beginning January 1, 2022, plans and insurers must make disclosures regarding the NSA’s surprise medical billing requirements. These disclosures must be publicly available, posted on the plan’s or insurer’s public website, and included in each explanation of benefits (EOB) for any item or service to which the NSA’s surprise medical billing requirements apply.
How to Ensure third-party administrator (TPA) availability
Self-funded health plans that rely on TPAs to assist with plan compliance need to coordinate with their TPAs regarding the NSA. For example, plans will need to determine whether their TPAs can timely perform QPA calculations and implement (and administer as necessary) the IDR procedures.
TPAs need to establish IDR and QPA strategies
Plans with TPAs should also discuss how they will approach making initial payments for NSA-covered items or services. For example, paying a relatively low payment amount (relative to the applicable QPA) may increase the likelihood that a provider will initiate the IDR process. Importantly, if a plan or insurer “loses” the IDR process (that is, its payment offer is not accepted by the IDR arbitrator), the plan or insurer must pay the IDR arbitrator’s fees for the IDR process.
Make sure to update health plan documents including claims procedures
The surprise medical billing rules require updates to governing health plan documents, including summary plan descriptions (SPDs), and open enrollment materials. Plan descriptions of emergency services and OON coverage likely will require amending for the NSA, and plan claims procedures should address the NSA’s IDR procedures.
The administrative agencies have adopted procedures to audit plans and insurers regarding QPA compliance, with enforcement authority divided among the Departments of Labor, Health and Human Services, and Treasury. In addition, complaint procedures have been created for receiving and resolving complaints (including from participants) that a plan or insurer may be noncompliant with the surprise medical billing rules.
Health plans and insurers will need to navigate an evolving regulatory and litigation landscape as they carry out compliance efforts for the NSA’s surprise medical billing requirements.
For more information on the surprise medical billing requirements for plans and insurers, see Surprise Medical Billing for Health Plans, Health Insurers, and Health Care Providers and Facilities Toolkit, now available on Practical Law.