In the Alphabet Soup of Regulations, the NSA, GFE and AEOB Have Yet to Coalesce

A timely update on the NSA and the AEOB.

In August, the administration published the final final rule on the No Surprises Act’s Independent Dispute Resolution (IDR) process. The IDR is the arbitration process for deciding the reimbursement for claims for which out-of-network providers are prohibited from balance billing patients.

The final rule aligned with a February decision from a Texas District Court that a plan’s median in-network rate, or Qualifying Payment Amount (QPA) should not be given more weight by arbitrators in deciding an appropriate out-of-network rate. Rather, the QPA should be weighed equally with other factors such as the training or quality of the provider and the market share of either party.

After that final final rule in August, the industry held its breath. Would the seven lawsuits that providers had filed against the No Surprises Act’s IDR now go away?

Yes and no. The AMA and the AHA dropped their lawsuit, though they continue to argue that the final final rule still does not meet the intent of Congress.

You see, in the final final rule, while the administration said that the QPA should not be weighed heavier than other considerations, the rule did say that the QPA, being the only quantitative factor, should be the first factor to be considered.

That does not sit well with the Texas Medical Association (TMA) which filed a new lawsuit late last month against the NSA IDR process. The TMAlawsuit asserts that, by putting the QPA first among many, the rule continues to unfairly favor insurers. Notably, the TMA lawsuit was filed in the Eastern District of Texas with the same judge that sided with providers last February. So, the plot thickens.

In other NSA news, let’s check in on the Advanced Explanation of Benefits (AEOB). This is a requirement in which, for all scheduled services for all insured patients, all providers will be required to provide good faith estimates to health plans which, in turn, would be required to provide.

That AEOB would list both the provider’s Good Faith Estimate plus any patient financial responsibility.

In late September, the administration published a Request for Information (RFI) asking for public comments on the Good Faith Estimate (GFE), and the AEOB.

On its regulatory schedule, the government says that it will offer a proposed rule on the AEOB on Jan. 1, 2023. Given that comments on AEOB’s Request for Information are just coming in now, it is highly unlikely that there will be a January proposed rule on the AEOB. Most likely, such a rule would be published late next year, if at all.

In the meantime, the standards development organization (SDO) HL7 has published a draft of an Implementation Guide for the Good Faith Estimate and AEOB. However, it will take some time for HL7 and other standard development organizations to develop and approve the needed data transaction standards for the Good faith estimate and AEOB; it will also take some time for the government to adopt any such standards. Finally, the administration has promised that it will also give some time for plans and providers to build the infrastructure to accommodate the GFEs and AEOBs.

An analogy would be the many years it took for standard development, government adoption, and industry implementation of ICD-10 and X12 5010.

In other words, the industry is a long way from having to implement the AEOB.

Programming note: Listen to Matthew Albright’s legislative update every Monday on Monitor Mondays at 10 Eastern.

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Matthew Albright

Matthew Albright is the chief legislative affairs officer at Zelis Healthcare. Previously, Albright was senior manager at CAQH CORE, and earlier, he was the acting deputy director of the Office of E-Health and Services for the Centers for Medicare & Medicaid Services.

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