The No Surprises Act (NSA) came into force on January 1, 2022, but since the effective date there have been many updates and changes regarding the NSA and its compliance. We take a look at the major NSA 2022 changes and guidance details.
As we wrote earlier, the NSA is a federal law enacted primarily to eliminate surprise medical bills for people enrolled in group health plans or group or individual health insurance coverage offered by an issuer. health insurance that results from: (1) emergency services rendered by out-of-network providers or (2) covered non-emergency services rendered by out-of-network providers at in-network facilities. In 2021, the Office of Personnel Management, the Department of Treasury, the Department of Labor, and the Department of Health and Human Services (together, the departments) jointly issued a set of Interim Final Rules on the requirements of the NSA – Part One, Part Two, and Part Three.
In 2022, certain provisions of the NSA were challenged in court, which resulted in the cancellation of parts of the NSA requirements. We explored these developments when they occurred in March and again in August.
CMS, on behalf of the Department of Health and Human Services, has also published many helpful guidance and educational materials, including the following:
- In February 2022, CMS published an Independent Dispute Resolution (IDR) FAQ for the NSA. This FAQ answers nearly 50 questions in the following areas:
- IDR Entity Qualifications
- IDR fees
- IDR process
It also released a chart to help determine whether the federal IDR process, state law, or the standard agreement of all payers applies to determine out-of-network rates.
- On April 5, 2022, CMS released a Good Faith Estimates (GFE) FAQ that providers must provide to uninsured and self-paid patients. Topics covered include:
- Should a GFE include a diagnosis?
- Must an EFG be provided for each instance of a recurring item or service?
- Is a GFE required for same day or walk-in services?
This was part 2 of a series of GFE FAQs. Available for reference is Part I.
- On April 6, 2022, CMS published a set of detailed NSA Vendor Compliance FAQs that included, among other things, the following topics:
- Exceptions to NSA Requirements
- Patients and providers to whom the NSA applies
- CMS Contact Information for NSA Compliance Questions
- Signature requirements
- IDR fees
- On June 24, 2022, CMS published FAQs that provided guidance and clarification on additional questions regarding NSA applicability, notice, and consent that continued to confuse vendors despite the coverage of previous FAQs. and other CMS tips. They include, among other topics:
- Which vendors do the NSA requirements apply to?
- Do any of the NSA protections apply to people covered by Medicare Advantage or Medicaid Managed Care?
- When are vendors prohibited from using the notice and consent exception?
- Can vendors rely on verbal consent to waive NSA protections?
- On August 19, 2022, the departments jointly released a set of FAQs that included the following topics:
- Application of NSA billing bans to referral-based rate plans
- Application of NSA Billing Provisions to Behavioral Health Facilities
- Which versions of consent and notice forms to use
Most recently, also on August 19, 2022, the departments issued a Final Rule that finalized certain requirements under the July 2021 Interim Final Rules and clarified the process for health insurance providers and issuers to resolve disputes. The final rule includes requirements for what information health insurance issuers must share about the eligible payment amount (QPA) if they code a bill from a provider or facility. The Final Rule also finalizes certain requirements under the October 2021 Interim Final Rule regarding consideration of information when a Certified IDR Entity makes a payment decision, in light of case law, which has overruled some parts. of the law on this subject. Finally, the final rule includes requirements for IDR entities’ explanations of the determinations and the underlying rationale. The terms of the final rule went into effect on October 25, 2022.
Going forward, on September 16, 2022, the departments issued an information request to inform rulemaking about requirements related to advanced explanation of benefits and GFE for covered individuals. Comments can be submitted until November 15, 2022.
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