When Two CMS Factions Interpret Identical Facts Differently

There are times when the Centers for Medicare & Medicaid Services (CMS) doesn’t agree with itself. I am dealing with a situation in which one team at CMS is saying the No Surprises Act (NSA) applies, and another is saying it doesn’t. 

One of my clients in Florida received an inquiry from CMS. Like many Sun Belt facilities, this organization frequently gets northern patients who are visiting, and consequently, out of network. This particular patient had come from New York.

My client contacted the health insurer to ask what the Qualifying Payment Amount (QPA) should be – that is, what the patient would have been responsible for if the patient had gone to an in-network facility. It is a very straightforward inquiry, and exactly what my client should have done.

The insurer effectively shrugged. “We don’t have a contract with you, so we don’t know what the patient responsibility should be” was the gist of their response. That is a blatant disregard of the insurer’s obligations under the NSA. Health insurers need to figure out what the patient would have owed in-network and communicate that to the healthcare entity. Then the healthcare entity is not permitted to bill the patient more than that amount. If the healthcare organization feels like the insurer is underpaying them, they may challenge the insurer’s payment, but the patient’s responsibility is effectively fixed by the insurer’s determination.

Here, the insurer refused to make that determination – not just for this patient, but for dozens of patients. My client was left with an interesting dilemma. What should they charge the patient? Their instruction to staff was to write off all of the patient’s responsibility. That was not legally required, but it is what they chose to do. Unfortunately, one employee goofed and sent a few claims to patients with the billed charges showing as patient responsibility. While that shouldn’t have happened, it is actually a bit unclear what the hospital should have done, given the information vacuum. 

When the patient complained to CMS, CMS sent a letter of inquiry. The hospital wrote off the patient balance, and I talked with the folks at CMS, who were responsive, helpful, and understanding. I was truly appreciative after the call. Their suggestion was that we file a complaint with the folks who oversee the insurance side of things, because the insurer was violating the NSA.

That seemed totally reasonable to me. So, we did it. I figured this would solve the problem.

My optimism was misplaced. Our complaint was dismissed.

The folks overseeing the insurers asserted that the NSA didn’t apply. So, one part of CMS was citing my client for violating the NSA, while another part was asserting that the insurer was not violating the NSA because it did not apply. Oy. Just oy. To be clear, I think the NSA does apply, and the team overseeing insurers is the one in the wrong. 

I will be reaching out to the folks overseeing the insurers to see if we can get the two parts of CMS to see the same facts the same way. But I think this is a good time to emphasize that I am seeing a lot of activity on NSA enforcement.

If you fail to give patients a good-faith estimate for visits scheduled three or more days out or bill them more than the QPA for emergency services – including services after admission, but before the patient can practically travel to an in-network facility – expect to hear from CMS. Many of my clients respond to the inquires by simply writing off the patient liability. But I would encourage you to take the time to figure out whether you were right or wrong. If you were wrong, admit it and fix the problem.

If you were right, stick to your guns. Writing off the patient responsibility without making the point that you didn’t violate the law may come back to bite you. 

In the words of Supertramp’s Rick Davies, who died last week, when you screw up, you can and should say “right, you’re bloody well right.” But if you haven’t erred, “write your problems down in detail and take them to a higher place.”

That is what we will be doing here!