Industry pushes for more time before surprise billing ban enforced


As the healthcare industry gears up to fall under the requirements of the No Surprises Act that bans balance billing, hospitals and insurers said they need more time and information to abide by the requirements.

Payers are asking for a safe harbor until 2023 calling the Jan. 1 start day is too soon for plans to determine payment amounts to out-of-network providers and as it seeks clarification on the resolution process.

Safety net hospitals represented by America’s Essential Hospitals want implementation to be delayed until six months after the public health emergency for COVID-19 ends, saying staff and resources are spread too thin dealing with the pandemic and especially the spread of the delta variant.

HHS released the first interim final rule to implement the No Surprises Act in June — one of multiple expected to be released this year — including those from the Departments of Treasury and Labor.

A major and much-debated aspect of the law is how qualifying payment amounts — the amount paid to providers who are not in network but are providing care at an in-network facility — are calculated.

Later rules are expected to provide more detail on the key issue of how the independent dispute resolution process will be conducted.

Payers and providers both argued in their comments that without more information on that process, it is hard to prepare. 

The ERISA Industry Committee, which lobbies for large employers, said that as the resolution process is developed, deviation from QPAs “should be limited to extenuating circumstances.” That’s in direct contrast to the American Hospital Association, which requested the department not overly weigh the QPA as a factor in consideration.

When Congress debated a ban on surprise billing, whether a dispute resolution process would be used or whether rates for out-of-network providers would be based on a set rate was perhaps the most hotly contested aspect. In the end, providers got the win with the arbitration clause.

In comments on the rule, both AHA and payer lobby AHIP called for a multi-stakeholder group to advise on issues such as what provisions fall under state and federal jurisdiction and other operational challenges.

The hospital lobby requested clarification on a number of aspects of the rule, such as how good faith estimates of costs should be calculated on consent forms patients may sign to waive balance billing protections and when a provider can bill a patient if their claim is denied by the plan.

In multiple instances, the group asked the department to confirm that the initial payment should not be the QPA unless both the plan and provider agree to that circumstance.

The country’s largest hospital lobby is also concerned that the act won’t do enough to ensure network adequacy from insurers and will not institute enough oversight on plans’ compliance.

AHA said it is “deeply concerned that the existing oversight mechanisms are insufficient to monitor plan and issuer behavior and a more robust structure is needed to enforce the QPA requirements.”

The Federation of American Hospitals expressed similar concerns, particular regarding “abusive plan practices” like inappropriate claims denials and downcoding. The group urged the departments “to expand their oversight of plans and issuers to prevent and address unlawful and abusive plan practices.”

AEH, meanwhile, asked for assurances that administrative burdens like the notice and consent documentation would be fairly split with insurers.

Under the rule, the QPA is to be decided by a plan’s median in-network contracted rate for a geographic area. It must have a minimum of three contracted rates to use this method. If that is not available, the payer can use an independent claims database.

FAH, in particular, asked that the rule strengthen conflict of interest regulations for these databases and have their eligibility determined by the departments instead of the insurers themselves.

AHIP’s most immediate concern is the timeline for implementation. It asked for the good faith safe harbor request to develop QPA methodologies, create the infrastructure to transmit notice and consent forms with providers and for it to receive the forthcoming information on the arbitration process.

“Health plans and issuers have responsibility for developing work streams; updating information technology; creating forms, notices, and other communications; training employees; and other operational measures necessary to effectuate obligations” in the rule, the group wrote.

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