As explained in Part I of this two-part series, surprise medical billing generally occurs when insured patients are unknowingly treated by out-of-network providers or facilities then receive a larger-than-expected bill.

Billing departments can play a key role in carrying out the No Surprises Act – a new law banning this practice. Among other policies, billing practices will support the administration of the independent dispute resolution (IDR) process, good faith estimates, and external review.

Requirements Related to Surprise Billing; Part II
The second tri-department Interim Final Rule (IFR) for the No Surprises Act posted September 30, 2021, outlining the IDR process. Commonly known as arbitration, IDR will resolve payment disputes between what the provider or facility bills and what the plan or issuer covers since neither side can ask the patient to pick up the remainder of the tab starting January 1, 2022 – the date surprise medical billing is banned in most settings.

Authored by the Department of Health and Human Services (HHS), the Department of Labor (DOL), and the Department of the Treasury (Treasury) – as well as the Office of Personnel Management (OPM) – the second installment of rulemaking provides instructions to industry on the most contentious issue surrounding the breakthrough law.

Comments on the rule were accepted through December 6, 2021, the regulation took effect October 7, 2021, and the applicability date is generally January 1, 2022, although certain provisions – such as the certification of IDR entities, or arbiters in layman’s terms – took effect when the rulemaking published in the Federal Register.

The No Surprises Act requires the secretaries of HHS, DOL, and Treasury to establish by December 27, 2021, standards implementing the IDR framework outlined by Congress. The IDR timeline established by law provides a 30-day open negotiation to settle out-of-network payment disputes. If the two parties cannot reach an agreement, either party may initiate IDR within four days.

When reviewing disputes, the arbiters must presume that the Qualifying Payment Amount (QPA) (overviewed in Part I) is the correct out-of-network payment. Any departure from this amount, resulting from the submission of additional considerations – such as the complexity of the case or the quality of the care – must be credible and “materially different” from the QPA. Otherwise, the offer closest to the QPA must be selected.

Billing departments will play an integral role in the collection of information related to the QPA, IDR process, and providing additional considerations when seeking a reimbursement different than the initial payment.

Good Faith Estimates, External Review
Another provision billing practices will assist in carrying out is good faith estimates. For care scheduled at least three business days in advance, providers and facilities must verify within one business day which type of coverage patients are enrolled in and provide the payer – or patient, if they are uninsured – a good faith estimate of the amount they may charge the patient for care, including the expected billing and diagnostic codes. For care scheduled at least 10 business days in advance, providers and facilities must verify the information within three business days after scheduling care.

To assist with compliance, rulemakers posted a model disclosure for Good Faith Estimate for Health Care Items and Services.

Even more, patients are entitled to expanded rights for external review of adverse benefit determinations, such as denials based on medical necessity. A notable expansion of external review under the law is the ability to dispute whether a plan or issuer complied with calculating patients’ out-of-pocket costs. And patients can seek an external review of their Notice and Consent protections, which allow individuals to voluntarily receive care from an out-of-network providers or facilities.

In each of these circumstances, billing departments are fundamental in supporting the collection and dissemination of information to arbiters, patients, plans and issuers, providers and facilities, and regulators.

What’s next?
The weight given to additional considerations for IDR is the source of ongoing debates amongst lawmakers and stakeholders concerning congressional intent. This debate will continue, as will the legal challenges.

Nevertheless, regulators have January 1, 2022, circled on their calendars as they continue to diligently implement this landmark patient protection.

Best known in the corridors of Washington simply as Buck, Adam L. Buckalew is a seasoned congressional aide with senior experience on key committees in both the U.S. Senate and the U.S. House of Representatives. Founder of alb solutions – an integrated strategic advisory firm – Buck is a well-respected expert who has advised decision makers across both federal and state governments, the private sector, and political campaigns over the past 15 years.