Latest on the No Surprises Act: The Bill that Never Sleeps

Just before Congress adjourned for 2023, lawmakers sent another in a series of letters to the Centers for Medicare & Medicaid Services (CMS) expressing “serious concerns” regarding implementation of the No Surprises Act (NSA). The letter accused CMS of not properly implementing key pieces of the Act and suggested that the agency strayed from enactment as Congress had intended.

Little did anyone know that the committee’s letter would turn out to be a harbinger for a flurry of activity on the NSA – in particular from the courts and federal regulators.

Last week, the U.S. Court of Appeals affirmed the dismissal of a New York surgeon’s lawsuit that sought to overturn the entire NSA.

The failed lawsuit claimed that the NSA interferes with providers’ rights to sue patients for the full value of their emergency medical services. However, this is just one of multiple lawsuits that may yet impact CMS’s implementation of the NSA.  

Meanwhile, the Biden Administration recently announced that there is no plan to publish any rules on the NSA’s Advanced Explanation of Benefits (AEOB), or Good Faith Estimate (GFE) provisions. Last year, the Administration announced that an AEOB rule would be published early in 2024, but it now seems that this is not going to happen.

Additionally, last November, CMS released a lengthy proposed rule that would overhaul the NSA’s independent dispute resolution (IDR) process by making significant technical/procedural changes.

The period for the public to submit comments to CMS on the proposal was supposed to last until Jan. 2, but due to such high demand for submitting additional comments, coupled with the many technical components in the rule to comment on, CMS recently reopened the submission period for an additional two weeks; it now closes next Monday, Feb. 5.

There were over 90 individual comments submitted to CMS on the proposal during the first open submission period, many of which had common takeaways.

For example, providers strongly suggested a penalty in instances in which a payor fails to respond in a timely fashion to a request to negotiate reimbursement for surprise bills, while health plans took issue with some of the planned updates to the federal IDR portal, such as proposed requirements that plans submit much more information into the portal throughout the IDR process than is currently required.

And so, the No Surprises Act continues to generate news.

Now, one last related story: the percentage increase for calculating the qualifying payment amount (QPA) for items and services furnished under NSA protections was updated for 2024 in the last couple weeks by the Internal Revenue Service (IRS).

You may recall that the QPA is considered the median in-network rate; it’s a critical component of the calculations used by payors to reimburse providers for NSA-protected services and a vital data point for arbiters to review during the IDR process.

If my examples aren’t enough to convince you to focus more on everything going on with the NSA, I’ll sweeten the pot, so to speak, and close with this…

Consider the following two stats from a recent CMS NSA summary and a report from the Government Accountability Office (GAO):

1. Nearly half a million IDR disputes were submitted between the NSA’s 2022 effective date and June 2023, far more than CMS anticipated.
2. CMS has received nearly 8,000 complaints of alleged NSA violations since the law took effect, with nearly 7,000 levied against providers.

The bottom line? Perhaps we should call the NSA the law that never sleeps: It’s far from set in stone, and between Congress, CMS, the Administration, and the courts, implementation continues to experience changes and challenges on multiple fronts. Don’t let its momentum creep up on you.