NSA Implementation Shortly before Congress adjourns for 2023; lawmakers sent another in a series of letters to the Centers for Medicare and Medicaid Services (CMS) expressing “serious concerns” about the implementation of the No Surprises Act (NSA).
The letter accused CMS of failing to properly implement key portions of the law and suggested that the agency had deviated from what Congress intended to pass.
Did no one know that the committee’s letter would prove to be a harbinger of intense activity at the NSA, particularly from the courts and federal regulators? The USA appeals court upheld the dismissal of a New York surgeon’s lawsuit seeking to overthrow the entire NSA.
Legal Challenges Unveiled: Lawsuits Impacting NSA Implementation
The failed lawsuit alleged that the NSA interfered with providers’ right to sue patients for the full value of their emergency medical services. However, this is just one of several lawsuits that could potentially impact CMS’s implementation of the NSA.
Meanwhile, the Biden administration recently announced that there are no plans to publish rules on the NSA’s Advanced Explanation of Benefits (AEOB) or Good Faith Estimate (GFE) provisions. Last year, the administration announced that an AEOB standard would be published in early 2024, but now it appears that will not happen.
Additionally, last November, CMS released a lengthy proposed rule that would reform the NSA’s Independent Dispute Resolution (IDR) process through significant technical and procedural changes.
The deadline for the public to submit comments on the proposal to CMS was January 2nd. However, due to the high demand for submitting additional comments, as well as the many technical components in the comment rule, CMS recently reopened the submission deadline for an additional two weeks; The closure will now take place next Monday, February 5th.
During the initial open submission period, CMS received more than 90 individual comments on the proposal, many of which shared common conclusions. For example, providers strongly suggested a penalty for cases where a payer fails to respond promptly to a request to negotiate reimbursement for surprise bills, while health plans had concerns about some of the planned updates to the federal IDR portal, such as the proposed requirements Plans to submit significantly more information to the portal than is currently required throughout the IDR process. And so the No Surprises Law continues to make headlines.
IRS Updates QPA for Protections in 2024
Now one last related story: The percentage increase for calculating the qualified payment amount (QPA) for items and services provided under NSA coverage has been announced in the last two weeks by the Internal Revenue Service (IRS) for Updated 2024.
As you remember, the QPA is considered the middle rate within the network; It is a critical part of the calculations payers use to reimburse providers for NSA-protected services and an important data point for arbitrators to review during the IDR process.
If the examples aren’t enough to convince you to focus more on everything that’s going on with the NSA, I’ll sweeten the pot, so to speak, and conclude with the following two statistics from a recent CMS-NSA summary and one Report from the Government Accountability Office (GAO):
Nearly half a million IDR disputes were filed between NSA’s effective date in 2022 and June 2023, far more than CMS expected.
CMS has received nearly 8,000 complaints alleging NSA violations since the law took effect, and nearly 7,000 have been filed against providers.
The result? Perhaps we should call the NSA the law that never sleeps: it is far from set in stone, and between Congress, CMS, the administration, and the courts, implementation continues to undergo changes and challenges on multiple fronts. Don’t let his impulses influence you.