Top 5 Questions from Health Plans Regarding the No Surprises Act

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The No Surprises Act (the NSA) was signed into law in December 2020 and most provisions went into effect January 1, 2022. In order to avoid penalties and consequences associated with noncompliance, it is crucial for health plans to fully understand the technicalities of the NSA and responsibilities placed on health plan entities under this new law.

 

We turned to one of our Advisory Board Members, Radha Bachman, Esq, Partner at FisherBroyles LLP, to assist in answering several questions regarding health plan compliance with the NSA.

1. Are the Requirements in the NSA Applicable to Dental and Vision Plans?

The general purpose behind the NSA is to prevent surprise billing for patients that, in the past, could result when receiving emergency or non-emergency care from out-of-network (OON) facilities and providers. Specifically, balance billing is when the patient receives a bill from the facility or provider for the difference between the billed charge and the amount reimbursed by the health plan to the provider. Under NSA, providers must now supply certain estimate documentation to patients before healthcare services are provided.

 

There has been some confusion regarding the applicability of NSA to dental and vision plans. A reading of the NSA reveals that the new requirements on balance billing generally apply to items and services provided to consumers enrolled in group health plans, group or individual health insurance coverage, and federal employees’ health benefits plans. As a result, certain short-term  stand-alone dental benefits or vision plans will not be covered by NSA, at least at this time.

2. Are the Requirements in the NSA Only Applicable to Medicare Advantage Plans?

The NSA is not explicitly for Medicare Advantage (MA) plans.  All healthcare plans, non-MA included, are bound by the requirements contained in the NSA.

3. Who Covers the Cost of the “So-Called” Dispute Resolutions Referenced in the NSA?

One of the new additions implemented by NSA is the ability for individuals to dispute items and services charged that exceed the good faith estimate by $400 or more. Radha confirmed that the NSA currently provides for two methods of dispute resolution depending on which parties are involved: third-party arbitration and independent patient dispute resolution.

 

While the method of filing for a dispute differs, who pays for the cost of dispute resolution follows a similar format in both cases.

Third-Party Arbitration
Third-Party Arbitration

For third-party arbitrations (provider-patient dispute resolution), the individual pays an administrative fee when submitting a notification to HHS. An SDR entity is then assigned to the dispute and determines the prevailing party. If the provider or facility is determined to be the non-prevailing party, they must decrease the final payment amount by the amount of the administrative fee, essentially making them responsible for the cost of the fee.

 

If a settlement is made before the SDR decides, the provider or facility must decrease the final settlement amount by half of the initial administration fee paid by the individual, so both provider and patient split the cost.

For third-party arbitrations (provider-patient dispute resolution), the individual pays an administrative fee when submitting a notification to HHS. An SDR entity is then assigned to the dispute and determines the prevailing party. If the provider or facility is determined to be the non-prevailing party, they must decrease the final payment amount by the amount of the administrative fee, essentially making them responsible for the cost of the fee.

 

If a settlement is made before the SDR decides, the provider or facility must decrease the final settlement amount by half of the initial administration fee paid by the individual, so both provider and patient split the cost.

Independent Patient Dispute Resolution
Independent Patient Dispute Resolution

The primary difference with an independent patient dispute resolution (IDR-health plan-provider) is that both parties pay a certified IDR entity fee to the certified IDR entity, not just the patient. These fees are due at the time of the offer submitted by the party and are held in a trust or escrow account by the certified IDR entity until the OON rate is determined. The prevailing party gets their fee refunded within 30 days of making the determination.

 

If the parties negotiate on an OON rate before the IDR entity decides, the IDR entity will return half of each party’s payment.

 

Note that the IDR provisions are currently being revised by Federal agencies due to a recent court case in Texas.

The primary difference with an independent patient dispute resolution (IDR-health plan-provider) is that both parties pay a certified IDR entity fee to the certified IDR entity, not just the patient. These fees are due at the time of the offer submitted by the party and are held in a trust or escrow account by the certified IDR entity until the OON rate is determined. The prevailing party gets their fee refunded within 30 days of making the determination.

 

If the parties negotiate on an OON rate before the IDR entity decides, the IDR entity will return half of each party’s payment.

 

Note that the IDR provisions are currently being revised by Federal agencies due to a recent court case in Texas.

4. How Long Do Health Plans Have to Update Provider Network Information Provided to the Public?

With the implementation of NSA, all health plans and health insurance issuers offering group health insurance coverage must:

  1. Establish a verification process;
  2. Establish the response protocol;
  3. Establish a database; and,
  4. Include all provider directory information.
Verification Process
Verification Process

According to the verification process, the issuer or plan must verify and update the provider directory information every 90 days at minimum, including updating all healthcare providers and healthcare facilities listed in the database. In addition to updating the directory every 90 days, the database must also be updated within 2 business days of the plan or issuer receiving new information.

According to the verification process, the issuer or plan must verify and update the provider directory information every 90 days at minimum, including updating all healthcare providers and healthcare facilities listed in the database. In addition to updating the directory every 90 days, the database must also be updated within 2 business days of the plan or issuer receiving new information.

Response Protocol
Response Protocol

The response protocol states that individuals who request information through a telephone call regarding the terms of their plan or coverage for a specific item or service must receive a response no later than 1 business day after the call is received. The communication exchanged during the phone call must also be retained in the individual’s file for at least 2 years.

The response protocol states that individuals who request information through a telephone call regarding the terms of their plan or coverage for a specific item or service must receive a response no later than 1 business day after the call is received. The communication exchanged during the phone call must also be retained in the individual’s file for at least 2 years.

Database
Database

The created database must include a list of each healthcare provider and healthcare facility included with the plan and all provider directory information, updated every 90 days.

The created database must include a list of each healthcare provider and healthcare facility included with the plan and all provider directory information, updated every 90 days.

Information
Information

For print directories containing provider directory information, they must include a notification that the information in the directory is accurate as of the date of publication. The notification should also state that any individuals enrolled under the coverage or plan should seek the database to obtain the most current provider directory information.

For print directories containing provider directory information, they must include a notification that the information in the directory is accurate as of the date of publication. The notification should also state that any individuals enrolled under the coverage or plan should seek the database to obtain the most current provider directory information.

5. When Must Providers Notify the Health Plan of Changes in Their Information Contained in the Health Plan’s Directory Listing?

At a minimum, any healthcare provider or healthcare facility working with a plan or issuer must submit their provider directory information to the plan or issuer: 

  1. At the beginning of the network agreement with the plan or issuer;
  2. At the time of termination of a network agreement with the plan or issuer;
  3. When there are material changes to the content of the provider directory information of the provider or facility;
  4. Upon request by the plan or issuer; or
  5. At any other time determined appropriate by the provider, facility, or HHS.

If you have any questions regarding how Constellation4 can assist your company in compliance with the NSA, please email us at info@constellation4.com or contact us on our online form.

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