Flurry of NSA Movement Flies Under the Radar

Following President Trump’s move into the Oval Office and his administration getting set up in the federal agencies, we’ve seen unprecedented movement on certain legislative and policy issues over the past month and change.

But flying under the radar during this time has been a flurry of activity on the issue that seemingly never sleeps: the No Surprises Act (NSA). So, while our attention has been pulled in a variety of directions lately, I’d like to refocus on what’s been happening recently with the NSA.

First, let’s touch quickly on the Unified Agenda, which is a schedule of upcoming regulatory actions expected to come out of the federal agencies. 

Just prior to the changeover in administration, the Biden Administration updated the Unified Agenda with new anticipated dates for implementation of three key NSA regulations:

1. In August of this year, the government expects to publish a final rule to overhaul the NSA’s Independent Dispute Resolution (IDR) process and portal, and also implement a health plan registry, all of which we’ve been waiting on since last November;

2. This March, another final rule on insurer reporting requirements for air ambulance claims is expected to be published; and

3. In July, a proposed rule on implementing the NSA’s Advanced Explanation of Benefits (AEoB) provisions is scheduled to be published.

Now, here’s the rub – because of the change in presidential administration and the freeze that the Trump Administration placed on all non-implemented regulations, these planned developments are likely to be delayed, as even outside of post-presidential election years, publication dates announced in Unified Agendas are often missed, sometimes by years.

In the absence of certainty surrounding publication of these regulations, we can shift our focus to how the NSA is faring in the courts. For some time now, the NSA has sparked a number of legal challenges.

The most significant of these have centered around providers that disagreed with how the Centers for Medicare & Medicaid Services (CMS) implemented the text of the NSA, as written by Congress.

However, the more recent NSA litigation is between payers and providers, centering on reimbursement decisions coming out of the NSA’s Independent Dispute Resolution (IDR) process.

With these new cases has also come a shift in the type of players that are involved in NSA legal challenges. Many of the relevant parties embroiled in previous court cases included the government and medical provider associations, but the more recent cases are being litigated between health plans and individual provider groups.

And like the NSA-related regulations that the feds are intending to publish, rulings on these new court cases will likely have major implications for how the NSA is implemented and subsequently used by the industry.

One other element playing an equally important role in defining NSA policy is legislative/executive action at the state level. Where so much is fluid but tentative at the federal level and in the courts, the states have the opportunity to pick up the ball and run with it.

Not only did the governor of Indiana issue an executive order last month requiring state agencies to review and implement medical balance billing protections statewide this year, but two other states, Colorado and Utah, have already filed ground ambulance-specific surprise billing protection legislation and moved their bills to committee for further examination.

These states are now leading the way on ground ambulance surprise billing, which was excluded from the NSA’s surprise billing protections and is an unaddressed area of concern for patients.

In sum, ongoing regulatory updates, judicial challenges, and state-level statutory efforts reflect the extremely complex nature of NSA policy. Patients, insurers, and providers must continue navigating these changes as the environment surrounding surprise billing continues to shift.

And with everything else that’s happening in politics and policy battling for our attention, be careful, because if you blink, you just might miss something significant.