No Surprise: NSA and Transparency Rules Report Lacks Substance

For those of you who have used ChatGPT to, say, organize an email or a presentation, you know that the artificial intelligence (AI) is very good at outlining and summarizing certain subjects, especially at a very high level.

But you can’t depend on AI to say anything new about a given subject. Not yet, anyway. This is actually a good thing for people like me, who make my living writing and talking about stuff.

These were my thoughts as I read the U.S. Department of Health and Human Services (HHS) first annual report on the No Surprises Act (NSA) and its effect and impact on the healthcare industry. The long-awaited report was released late last week, but it simply summarizes a list of possible impacts the NSA may have (but does not present any new information).

The document promises that in the future, these annual reports will include how the NSA may – or may not – impact out-of-network pricing, and any movement by providers between out-of-network and in-network.

The report also promises that in future reports, an analysis will be done on whether (or not) the No Surprises Act has impacted in-network negotiations and overall medical costs, and whether (or not) the NSA has created more or less consolidation in the marketplace.

In essence, the 45-page annual report is what a journalism teacher of mine once referred to as “clearing one’s throat:” spending a lot of time introducing what you plan to talk about, but then … not actually talking about anything. In other words, an AI could have (and may have!) written it.

Also in NSA news, last week the government presented its initial arguments on an appeal of a decision made in a Texas federal court last winter regarding the No Surprises Act. As you may remember, the Texas Medical Association won a number of decisions against HHS on its No Surprises Act Independent Dispute Resolution (IDR) process. The Association’s basic argument in all these cases is that providers are disadvantaged by the process.

With its appeal, HHS is pushing back. One argument that they do not make in their appeal is that providers have won 70 percent of the cases in the IDR process so far against health plans, according to an April 2023 Centers for Medicare & Medicaid Services (CMS) report, so the scoreboard itself is not showing any disadvantage to providers, to this point.

Moving on, the administration and Congress continue to fidget with the hospital transparency rules, in terms of requirements and enforcement.  

A number of bills have been passed on a bipartisan basis by House Committees – including the PATIENT Act out of the Energy and Commerce Committee – that would codify the provider transparency rules and ramp up enforcement.

Now, these bills haven’t made it to the House floor yet, and the Senate has not seen them at all, but there’s some chance that they may end up in an end-of-year omnibus package.

Last week CMS also published the proposed Medicare Outpatient Prospective Payment System (OPPS) rule. In that rule, CMS proposed an outpatient payment update of 2.8 percent.

In the rule, the government also proposed several changes to the hospital price transparency requirements, including requiring that hospitals use one of several standardized formats for the Machine-Readable Files, or MRFs, and some more amping up of enforcement.

Now, I’ll be a good AI here and summarize: for both the No Surprises Act and the Transparency Rules, stay tuned. Between litigation, new legislation, and new regulations, the requirements and policies of these two sets of laws will continue to change.

Programming note: Listen to legislative updates every Monday on Monitor Mondays with Chuck Buck.