Will The No Surprises Act Be Implemented As Lawmakers Intended?

Xavier Becerra, Secretary of the U.S. Department of Health and Human Services (HHS) recently informed the House Appropriations Committee that he would be seeking feedback from stakeholders before enacting a policy to end surprise billing although he did not affirm whether he would use the formal rulemaking process. Typically, the rulemaking process sets out proposed regulations and then welcomes comments from all stakeholders.

The No Surprises Act applies to ERISA self-funded and fully insured plans and prohibits providers from balance billing patients for services rendered over a patient’s in-network cost sharing obligation when treatment is received for emergency medical services or for inadvertent services by an out-of-network physician at an in-network facility.  The No Surprises Act establishes a comprehensive baseball-style arbitration system through independent dispute resolution (IDR) for resolving payment issues between providers and insurance companies.

Representative Andy Harris (R-MD) expressed concern that HHS could issue an interim rule to implement the No Surprises Act to end balance billing, without gathering stakeholder feedback prompting lawmakers close to the bill to question whether the rules being issued will be in a manner consistent with the congressional intent.

Senators Bill Cassidy, MD and Margaret Wood Hassan, proponents of the arbitration system or independent dispute resolution (IDR) process sent a letter to all three heads of the governing agencies:  Xavier Becerra, U.S. Department of Health and Human Services; Janet Yellen, U.S. Department of the Treasury and Martin J. Walsh, U.S. Department of Labor to confirm regulations will be written in accordance with congressional intent.

The Senators outline in detail the intent of the bill’s provisions including these highlights:

  • Arbitration Framework, most notably requiring the arbiter to give each of the six arbitration factors equal weight and consideration;
  • Transparency requiring health plans to provide clear information about patient’s cost sharing obligations in addition to requiring payors to issue an advanced explanation of benefits to patients for scheduled care, and
  • Consumer Protection requiring providers to give a timely, good faith estimate for the price of services to payors to facilitate the advanced explanation of benefits

The No Surprises Act was crafted to protect patients from surprise medical bills, improve cost transparency and “ensure that both providers and payors are afforded a fair opportunity to settle payment disputes within an independent arbitration framework.” The letter is an appeal to the agencies to engage stakeholders in the rulemaking process to ensure implementation of the law will reflect the bi-partisan work and congressional intent of the bill. It remains to be seen what action if any the agencies will take.

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