Understanding the Intent Behind the No Surprises Act

We have an Interim Final Rule for the No Surprises Act, referred to as Part I. The comment period closed on September 7, 2021.

This is the administrative piece of the No Surprises Act, the federal level law that addresses group health plans and providers’ responsibility to the member for emergency care by an out-of-network provider or facility, an out-of-network provider during an in-network care episode (when the patient is not made aware before the services are rendered), and air ambulance.

Although some states already have surprise billing protections, states didn’t have the ability to reach self-funded employer insurance plans formed under the Employee Retirement Income Security Act (ERISA plans).

At a high level, the intent of this rule is to hold the patient harmless in these situations, without impacting their cost-sharing, as if they were in-network.

The provider and health plan are on the hook to ensure the patient is aware when they are entering an out-of-network situation and must work together to keep the member whole.

For example, let’s say a member goes to an in-network facility for surgery. The member believes all services are in-network, yet the anesthesiologist happens to be out-of-network. If the member is not aware and agrees upfront (consenting) to having an out-of-network doctor perform services, then the claim must be processed as if it was in-network. The provider and the plan will have to agree on a particular payment arrangement or the amount or the rate. Some arbitration and mediation can occur if the provider and the plan cannot come to terms, but there will be no balance billing to the member.

For health plans, there’s a bit more red-tape in the back end to ensure they’re not showing cost share as in-network and that the provider is on board with accepting our payment. Many processes will need to be updated from the plan’s perspective, but the intent behind the rule is important.

Consider this: when you’re in an emergency situation, the last thing on a person’s mind is, “does every provider in this ER take my insurance?” Or, if you require an air ambulance, “Are you calling an in-network ambulance?” That’s why these protections are being put in place.