Understanding the Surprises in the No Surprises Act

What care management needs to know, and how health systems can start preparing.

On July 1, the Centers for Medicare & Medicaid Services (CMS) released the initial requirements related to the No Surprises Act: “Requirements Related to Surprise Billing, Part 1.” With all the best intentions, the goal of the No Surprises Act is to put in place protections against surprise bills and balance billing. The Act was created to ensure that commercial health plan members will avoid unexpectedly receiving bills for additional costs after an emergency or planned service if the service was rendered by an out-of-network provider.  

Translating this to a hypothetical patient story looks like this: say a patient, Mr. Jones, goes to the local ED for a broken ankle. Mr. Jones’s emergency room visit is covered by his health insurance. After examination, it is determined that Mr. Jones will need surgery to repair his ankle fracture. Mr. Jones receives treatment from the ED facility (meds, nursing, etc.), the ED physician, and an X-ray to confirm the fracture, then the radiologist reads the X-ray. Mr. Jones then heads to the OR to have surgery with the ortho surgeon on call. He receives a host of services in the OR for his uncomplicated procedure, which includes anesthesiology. 

Post-operatively, Mr. Jones recovers without concern and returns home. As per usual, three months later, those bills start coming in. Mr. Jones is confused as to why he has hospital and provider bills from the ED physician, the radiologist, the OR surgeon, the OR team, and the anesthesiologist. Most of these doctors are in-network, in Mr. Jones’s health plan, and applied to his deductible for coverage. However, the on-call ortho surgeon, who Mr. Jones did not have time to Google search for on Healthgrades, is out-of-network, which means Mr. Jones will be paying the balance of coverage from this surgeon, as none of the expenses from this physician will be applied to the in-network benefits. Surprise!

The intention of the No Surprises Act is to protect patients like Mr. Jones from the additional expenses he incurred from the ortho surgeon, and instead ensure that although Mr. Jones will need to pay the ortho surgeon, the cost will be at his in-network rates. For the care manager, our primary responsibility is to advocate on behalf of our clients to promote patient safety, quality, and cost-effective outcomes. From the 50-foot perspective in Washington, this bill has all the right intentions of advocacy for our patients to ensure they are not straddled with financial hardship. The Act provides an opportunity for care managers to educate patients on their rights and responsibilities during emergency or planned surgeries.  

Now the big “however” is this: how will hospitals operationalize this legislation? Care managers must once again learn to coordinate a broken system of healthcare. They must help patients navigate who is in-network and who is out, and how to determine the value of their service provider. The surgery you want from the physician, who you trust, may not meet the qualifications for in-network care that your insurance company selected without your knowledge. 

Our company always advocates for a front-end revenue cycle; however, this Act will require health systems to move a little bit more in front. Consideration will need to be made for the argument of care management team members supporting planned surgeries, and they really should be supporting patients from the longitudinal perspective. The U.S. Department of Health and Human Services (HHS) has recommended a three-hour time window to provide notices to the patient and allow them to decide if they want to sign the four-page document letting them know that their service is out-of-network. I should also mention that this document must be available in the 15 most common languages of your geographic region. Three hours is likely not enough time, and really the notification needs to come at time of scheduling – and likely from the physician office.  

So before care management can step in to advocate for our patients and help determine the best options for coverage and treatment, and so patient financial services can complete the needed information on the document for the patient to sign, health systems must accomplish the following: 

• Determine an organizational policy and stance for how billing will occur. Will this be added to the list of write-offs, or do you need to add the needed infrastructure on the back end to negotiate with out-of-network payors for in-network rates? 
• Assess your employed, empaneled physicians and out-of-network providers. Make sure that credentialing is up-to-date with the payors. Pull out your pricing transparency charges and ensure that you have accessible data for your patient financial services and care management team to educate patients of expected charges if you decide to provide out-of-network services (IT will likely need to get involved for some EMR alerts in your revenue cycle system). 
• Assess your medical staff participating physicians that are non-employed, and determine how notification will occur at your facility for these practicing providers at your health system. The service provider (health institution) will be expected to notify the patient of the outside providers’ in-network/out-of-network status and whether they want to obtain consent for those patients – or if the provider will just work out the issues on the back end with the payor, rather than balance-bill the patient. This means that a list will need to be maintained for all participating providers of your facility regarding who is in-network and who is out-of-network, and their requests for notification to the patient.     
• Determine the front-end additional lift that will be required to provide accurate notification to patients for emergency and non-emergency services. This will include public notifications of the law and a clear work instruction of when to give the notice, how to fill out the form, and how you will contact care management when the patient has any questions (or decides that with this knowledge, they want to change their plan for treatment and go somewhere else, but have no idea how to do that). 

The No Surprises Act is expected to go into effect Jan. 1, 2022. CMS has opened a 60-day window for public comments at www.regulations.gov, under file name CMS-9909-IFC. You may also submit comments by mail to the Centers for Medicare & Medicaid Services, Department of Health and Human Services, attention: CMS-9909-IFC, P.O. Box 8016, Baltimore, MD, 21244-8016.