No Surprises Act – New Requirements and Revised Model Disclosure Notice
As the January 1, 2023, enforcement date for compliance with the No Surprises Act approaches, Final Rules released by the Department of Health and Human Services, the Department of Labor, and the Department of Treasury (the “Departments”) added new requirements for the information that plans and issuers must share with providers, facilities, or providers of air ambulance services and revised payment determination standards under the Federal IDR process. CMS also revised the Model Disclosure Notice Regarding Patient Protections Against Surprise Billing and its instructions.
Revisions to Model Disclosure Notice
CMS issued a second version of the Model Disclosure Notice Regarding Patient Protections Against Surprise Billing (“Model Disclosure Notice”) at https://www.cms.gov/files/document/model-disclosure-notice-patient-protections-against-surprise-billing-providers-facilities-health.pdf. The instructions for the new version of the Model Disclosure Notice clarify that providers and facilities should not give the disclosure notice to an individual who has Medicare, Medicaid, or to an individual who is uninsured. Providers and facilities may begin using the new version of the Model Disclosure Notice now. The previous version of the Model Disclosure Notice may only be used through the end of 2022. We recommend facilities and providers update websites, signage, and forms now in anticipation of January 1, 2023, when facilities and providers may no longer use the language in the first version of the Model Disclosure Notice.
Final Rules Issued
On August 19, 2022, the Departments released final rules under the No Surprises Act (hereinafter referred to as the “Rules”). The Rules are narrow in scope and require plans and issuers to provide additional information related to the qualifying payment amount (“QPA”) and make changes regarding the payment determination standards under the Federal IDR process. The Departments plan to address comments related to other provisions of the July 2021 and October 2021 interim final rules at a later date.
The Final Rules require plans and issuers to provide additional information if a claim is downcoded, including a statement that the service code or modifier billed by the provider, facility, or provider of air ambulance services was downcoded, a description of the altered service codes or modifiers, and the amount that would have been the QPA had the service code or modifier not been downcoded. The Final Rules define downcode as: “the alteration by a plan or issuer of a service code to another service code, or the alteration, addition, or removal by a plan or issuer of a modifier, if the changed code or modifier is associated with a lower qualifying payment amount than the service code or modifier billed by the provider, facility, or provider of air ambulance services.”
Payment Determination Standards under the IDR Process
The Departments made changes to the payment determination standards under the IDR process as a result of the U.S. District Court decisions in Texas Medical Association, et al. v. United States Department of Health and Human Services and LifeNet, Inc. v. United States Department of Health and Human Services, which vacated portions of the October 2021 interim final rules creating a rebuttable presumption in favor of the QPA in the Federal IDR process. The Rules require the certified IDR entity to consider the QPA for the applicable year for the same or similar item or service and then all additional information submitted by a party to determine which offer best reflects the appropriate out-of-network rate, provided that the information relates to the party’s offer for the payment amount for the qualified IDR item or service and does not include information that the certified IDR entity is prohibited from considering in making the payment determination. When considering the additional information, the IDR entity must make a credibility determination and should not give weight to information that is not credible.
When evaluating the additional information provided by the parties, the IDR entity should avoid double-counting information, if the information is already accounted for by any of the other information submitted by the parties. For example, the Departments received numerous comments that highlighted that in many cases, certain factors, such as patient acuity or the complexity of furnishing the item or service to the patient, will already be included in the calculation of the QPA and should not receive additional weight.