NSA Archives - EMPLOYEE BENEFITS BLOG

An Update on the No Surprises Act

by Jeffrey Davis, Kristen O'Brien and Emily Curran | Sep 28, 2023 | Employee Benefits, Health and Welfare Plans

The No Surprises Act (NSA) went into effect in January 2022, and it has subsequently faced plenty of litigation from healthcare providers. States and federal agencies are also examining surprise billing and consumer protection laws related to some provisions of the NSA. The report below provides an in-depth review of NSA litigation, oversight activities, and rulemaking and guidance as we approach Q4 2023. We also share our views on what lies ahead for healthcare providers.

Access the report.

Texas District Court Overturns Portions of the IDR Process

by Debra Curtis, Kristen O'Brien, Priya Rathakrishnan and Erica Stocker | Sep 14, 2023 | Employee Benefits, Health and Welfare Plans

On August 3, 2023, the US District Court for the Eastern District of Texas ruled on the implementation of the No Surprises Act in Texas Medical Association, et al. v. US Department of Health and Human Services, et al. (TMA IV).

In TMA IV, the plaintiffs challenged two things:

The increased administrative fee to participate in the independent dispute resolution (IDR) process. Providers asserted that the fee made participating in IDR for small-value claims cost-prohibitive.
The US Departments of the Treasury, Labor, and Health and Human Services (the Departments) rules regarding batching, which providers claimed made it difficult to batch related claims for resolution in a single arbitration proceeding.

The court found that the Departments violated the Administrative Procedure Act when they raised the IDR administrative fee from $50 to $350 for 2023 and established batching rules that did not allow providers to batch claims together in the IDR process. The court said that the changes were substantive and should have gone through notice and comment rulemaking. Ultimately, the court vacated both policies nationwide.

As a result, the IDR fee will return to $50 (for now). The batching rules are also vacated until the Departments go through rulemaking, resulting in a temporary suspension of the IDR portal. The Departments are working on a proposed rule that will likely include some batching policies.

The Departments can appeal this decision, as they did for TMA II.

Agencies Issue FAQs on Surprise Billing and Cost-Sharing Rules Coordination

by Alden Bianchi | Jul 25, 2023 | Employee Benefits, Health and Welfare Plans

A recent article by the Kaiser Family Foundation (KFF) and National Public Radio (NPR) raised the prospect that patients may still see surprise medical bills despite the enactment of the No Surprises Act (NSA).

The article, entitled A Surprise-Billing Law Loophole? Her Pregnancy Led to a Six-Figure Hospital Bill, reports the story of a woman who was admitted for an extended inpatient hospital stay and follow-up postpartum procedure after experiencing a serious pregnancy complication. According to the article, the plan initially determined that the hospital was a nonparticipating provider, but the specialty clinic at which she was treated was in the carrier’s network. (The clinic’s doctors admitted patients only to the nonparticipating provider hospital.) The result was some $135,000 in uncovered expenses.

There are two relevant statutory provisions at play here:

The NSA provides protections against surprise medical bills for, among other things, nonemergency services furnished by nonparticipating providers with respect to a visit to a participating healthcare facility.
The Affordable Care Act (ACA) imposes limits on annual cost sharing, which includes deductibles, coinsurance, copayments or similar charges. Cost sharing does not, however, include balance billing amounts for non-network providers.

A great deal is riding on whether facilities and providers are participating or nonparticipating for NSA purposes, and whether providers are in or out of network for ACA purposes. If it is possible for a nonparticipating facility to have a participating provider, then there would seem to be a gap in the NSA’s protections. In the government’s view, this is not possible, so there is no gap.

The US Departments of Labor, Health and Human Services, and the Treasury (the Departments) weighed in on the issue in Q&As 1 and 2 of recently issued FAQs Part 60. According to the Departments, either:

The balance billing and cost-sharing protections under the NSA will apply because the items and services are furnished by a nonparticipating provider, emergency facility or provider of air ambulance services; or
The ACA limits will apply because the items or services are furnished by an in-network provider or provider of air ambulance services.

Under no circumstance, however, can a facility be a “participating” provider for NSA purposes and at the same time claim that they are not subject to the ACA out-or-pocket limits on in-network cost sharing.

The KFF/NPR article does not report the details about the underlying contractual arrangements. This might have been a health maintenance organization or other network-related plan, for example. The article does report that the balance bill was reversed, although no rationale is provided. The lesson here, according to the Departments, is that a plan or carrier cannot be in network for one purpose and out of network for other purposes to evade the surprise billing rules.