The No Surprises Act (NSA) becomes effective on January 1, 2022 and will apply to virtually all commercial medical claims covered by ERISA, Non-ERISA, self-insured and fully insured plans for (1) emergency care performed by an out-of-network provider, (2) out-of-network post-stabilization care during the same facility visit or (3) non-emergency care provided by an out-of-network provider at an in-network facility. In addition, all assistant surgeon claims are covered under the NSA, as are services provided by an out-of-network provider at an in-network facility where there is no in-network provider available. Except under limited circumstances related to post stabilization care or where there are in-network providers available at a facility, notice and consent from the member to use an out-of-network provider is not effective under the NSA.
Does ERISA Preempt State Law Claims
However, the analysis does not stop at that point. Congress implemented the NSA to specifically permit State surprise billing laws to apply to these types of services, despite the historical application of ERISA preempting State law claims. As a result, practices will now need to know the member’s plan and whether the plan is fully insured or self-insured in order to determine whether State law or the NSA may apply to a given circumstance.
For a “No Surprises Act” State law to apply, the law must, among other things, prohibit balance billing of the patient and provide for a methodology to resolve payment disputes between the payor and provider. Further, the State law must apply to the member’s plan and the services being provided. For example, some State laws may only apply to HMOs and not to other types of plans. In those cases where the State law does not cover the member’s type of plan, the NSA applies. Likewise, a State law may only cover emergency services but not regulate services related to post-stabilization care or other services mentioned above. Again, the NSA would apply when State law does not.
Additionally, State law will only apply to fully insured plans or self-funded plans that have opted into being administered by State law. For self-funded patients, providers will need to know if the plan has opted into the State law governance for the member’s plan.
Providers will also need to know what State law applies. Many times, a patient lives in a particular State but the policy may be issued from a different State. How will providers know which State law applies to the patient’s plan? The preauthorization process will now require diligence in asking these questions and accurately collecting and documenting the information related to the patient’s plan. And will States now begin to assert jurisdiction over these out-of-state policies to protect their patients and providers? It is unclear to what extent States can regulate plans and insurance issued from other States.
Federal No Surprises Act vs State Laws
The differences between the NSA and State laws can be significant. For example, NY law does not require any time frame for a provider to challenge payment covered under NY Surprise Bill law, but action under the NSA is required within 30 days of the issuance of an EOB. Compare that to NJ, where the negotiation and arbitration timelines also differ from the NSA timelines. Practices will want to identify early on whether State law applies so they are aware of the claim “pathway” once the initial EOB arrives. While payors may be required to identify on the EOB how the claim was administered and whether it was done so under the NSA or State law, practices will need to confirm the accuracy of this information.
More importantly, some States have established guidelines where independent dispute resolution resolves disputes based on comparing the offers submitted by payors and providers to FAIR Health. Under NY law, arbitrators are to review the offers submitted in relation to the 80th percentile of FAIR Health when arriving at a determination. Under the NSA, neither Medicare nor usual and customary charges may be considered by the arbitrator and further guidance is expected from regulators as to how dispute resolution will work under the NSA.
Contact Us For Help Navigating The No Surprises Act and State Laws
There are a lot of variables and processes that providers are being asked to incorporate into their practice. Cohen Howard has been representing the out-of-network surgeon community for nearly 10 years and has collected over $100 million of additional reimbursement on behalf of our clients. We are here to help your practice navigate and implement the new NSA requirements into your practice.