Surprise! The No Surprises Act Isn’t Always So Easily Understood

Even self-proclaimed “experts” don’t always deliver reliable information about a thorny piece of federal legislation.

Over the last month I have taken in two presentations about the No Surprises Act (NSA), offered by a trade group that I generally consider to be highly reputable. 

Each contained significant errors. During the first presentation, a panel of antitrust experts was discussing price transparency. I asked about a recently delayed provision of the No Surprises Act that will ultimately require co-convenors such as a hospital and a surgeon who is performing a surgery at the hospital to coordinate to issue a combined good-faith estimate. 

If such a hospital employs surgeons, the sharing of price information means that competitors are sharing price data – which isn’t inherently illegal, but makes it much easier to argue that there are improper agreements regarding price. While I know something about antitrust law, I would not call myself the world’s top antitrust expert, and I was curious if lawyers who analyze such matters full-time might see the issue differently. 

To my surprise, they dismissed the premise of the question, arguing that there was no requirement that the physician and the hospital share pricing data. Apparently, these lawyers knew antitrust law, but not the No Surprises Act. They were mistakenly believing that the posting requirements found in the Price Transparency provision apply to the No Surprises Act. In fact, they argued with me rather vociferously, asserting that merely posting prices was sufficient, until another member of the audience echoed the existence of that No Surprises Act requirement.

In the second presentation, last week, someone asked the speaker whether physician practices were required to issue good-faith estimates. The presenter, who claimed to be an expert on the No Surprises Act, indicated that he believed that the law only applied to hospitals.

On the one hand, I am sympathetic to the confusion. The No Surprises Act has various tentacles that can make it difficult to understand. It is true that one portion of the law only applies to services delivered at hospitals, ambulatory surgical centers (ASCs), freestanding emergency departments, and in air ambulances. But there is a second portion of the law that applies to any licensed healthcare entity or professional. 

It is true that the government made things confusing by using the term “facilities” to describe both portions of the law, with “facilities” defined once as limited to hospitals/EDs/ASCs/air ambulances, and the second time as all licensed healthcare professionals and entities. It was a terrible error for the government to use different definitions for the same word. But the fact remains that an expert should know that the good-faith estimate requirement is in the portion of the rule applying broadly to all licensed professionals and organizations. Clinics, nursing homes, home health agencies, physical therapists, and the like are all required to offer good-faith estimates. Currently, that requirement is limited to individuals who are not using insurance to pay for their care, but that is slated to change in the future. But back to my main point, which is that you cannot blindly rely on anyone or anything to be a categorically accurate reporter of information.  I can’t be too indignant. I make mistakes, at times learning about provisions I did not initially know were there. 

George Washington apocryphally said, “I cannot tell a lie.” But even the most honest among us can be wrong. I am not really able to identify a great solution to the problem I am describing. I guess what I am saying is that when there is a disagreement about the interpretation of a legal provision, do not let the pedigree of the speaker or the reputation of the organization, law firm, or consultant prevent you from considering the possibility that they are wrong.

Programming note: Listen to healthcare attorney David Glaser’s “Risky Business” report on Monitor Mondays with Chuck Buck.