Policy Making & Sausage

The Balance Billing Saga Continues in 2021: Part 3

By Ed R. Marasco, MPM, CMTE, EMT-P (Ret.)*

As you may recall, the No Surprises Act (NSA) was passed earlier this year and serves as a broader (beyond just medical transport) effort to address surprise and balance billing across the healthcare landscape. The NSA:

  • Bans surprise billing for emergency services. Emergency services, regardless of where they are provided, must be treated on an in-network basis without requirements for prior authorization.
  • Bans high out-of-network cost-sharing for emergency and non-emergency services. Patient cost-sharing, such as co-insurance or a deductible, cannot be higher than if such services were provided by an in-network doctor, and any coinsurance or deductible must be based on in-network provider rates.
  • Bans out-of-network charges for ancillary care (like an anesthesiologist or assistant surgeon) at an in-network facility in all circumstances.
  • Bans other out-of-network charges without advance notice. Health care providers and facilities must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an out-of-network basis before that provider can bill at the higher out-of-network rate.

Policy Making & Sausage - The Balance Billing Saga Continues in 2021: Part 3In addition, the NSA shifted the agencies with responsibility for the matter. The shift to a new group that includes the Department of Health & Human Services, as well as the Department of Labor, Department of the Treasury (known now as the Tri-Agencies for NSA purposes) has complicated matters. This is particularly problematic because it left out the Department of Transportation, the agency with the responsibility of enforcing the Airline Deregulation Act (ADA).

Well, the interim final rule (IFR) has been published . . .

First, it is important to note that the use of an IFR is different than the typical rulemaking process. The typical process would include publication of a Notice of Proposed Rulemaking (NPRM) which gives constituency groups a more structured opportunity for comment and engagement. The use of an IFR streamlines the process and limits the timelines/process for comment. The comment period for this IFR will end on September 7, 2021. This approach is not surprising given the compressed timeline the Tri-Agencies had for action. The key elements that will need to be addressed in rulemaking include:

  • Patient Protection
  • Balanced Billing Prohibitions
  • Dispute Resolution Framework
  • Payment Benchmarks
  • Independent Dispute Resolution (IDR) Provisions
  • Additional Consumer Protections
  • Advisory Committee for Air Ambulance Billing
  • Advisory Committee for Ground Ambulance Billing

This first IFR only deals with SOME of the NSA elements. Additional rulemaking will continue throughout 2021 and will not likely be completed until the middle of 2022. This is troubling because many of the provider and payor obligations begin on January 1, 2022.

This first IFR addresses two prominent items:

  • Access to the Independent Dispute Resolution (IDR) Process
    There has been an ongoing discussion with the key players around the applicability of the IDR process. One potential approach could have limited access for disputes around payment amounts. That approach may have left providers with no recourse in a situation where payment was denied due to coverage and/or medical necessity issues. In that situation, the balanced billing prohibition may have left providers with no opportunity for redress with payors and prohibited them from billing patients as they would today. Instead, the rules define payment disputes to include these items, allowing providers to apply the IDR process in these situations. This is a win for the provider side.
  • Qualifying Payment Amount (QPA)
    The QPA may be used in several ways under the NSA. The key concern here has been the definition of the QPA for purposes of consideration in the IDR process. The narrowest definition of the QPA is the median in network rate paid to providers. Since in network rates tend to be lower than average rates paid to providers (some combination of in network payments and non-participating payment rates), the narrower definition disadvantages providers. The IFR applies the narrower definition. This approach disadvantages providers.

It is still early in the process, but the NSA is starting to take shape. There are many risks for the medical transport industry and tremendous risk for patients, with respect to access to care, if the rule is not fair and balanced. Please stay tuned for more updates.


*Ed Marasco is QMC’s Vice-President of Business Development and a veteran healthcare provider and administrator with over 40 years of experience in emergency medical services, reimbursement and consulting.

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