Understanding the New Surprise Billing Regulations (January 20, 2022)




In this episode of the Advancing Surgical Care Podcast, ASCA Chief Executive Officer Bill Prentice talks with Kara Newbury, ASCA regulatory counsel and director of government affairs, and Alex Taira, ASCA regulatory policy and research manager, about the new surprise billing regulations that took effect at the beginning of 2022. The conversation addresses both new prohibitions on certain billing practices as well as new requirements for good faith cost estimates for certain patients. ASC administrators will want to listen to this short, informative program to learn how to stay current and compliant with this new, consequential law.

Narrator: 0:06
Welcome to the Advancing Surgical Care Podcast brought to you by ASCA, the Ambulatory Surgery Center Association. ASCA represents the interests of outpatient surgery centers of every specialty and provides advocacy and resources to assist them in delivering safe, high-quality, cost-effective patient care. As with all of ASCA’s communications, please check to make sure you are listening to or viewing our most up-to-date podcasts and announcements.

Bill Prentice: 0:37
Hello, and welcome to the Advancing Surgical Care Podcast brought to you by the Ambulatory Surgery Center Association, or ASCA. My name is Bill Prentice, I’m ASCA’s CEO and the host of this episode. On today’s podcast, we will be discussing the No Surprises Act, a new federal law and accompanying regulations that largely became effective on January 1 of this year. These new regulations affect all healthcare providers, and we thought it would be helpful to talk about the steps that ASCs will need to take to be in compliance with them. For those unfamiliar with the No Surprises Act, it came about primarily as a result of growing concern about situations where patients received care from a provider that was in their insurance network, but subsequently received bills from out-of-network providers that provided some element of that care, resulting in what became known as surprise bills. In other instances, patients were billed by out-of-network providers for the difference between the amount paid by their insurer and the charge requested by that out-of-network provider—that’s otherwise known as a balance bill. And some of these so-called surprise bills were also deemed excessive. So, it led to a bipartisan effort on Congress’s part to prohibit some of these practices as well as additional requirements that providers furnish upfront good faith estimates of the cost of care. So, with me today to help explain what this all means for ASCs will be Kara Newbury, our regulatory counsel and director of government affairs, and Alex Taira, regulatory policy and research manager. In addition to our discussion, ASCA members can also find out more details about the No Surprises Act on the ASCA website, as well as by accessing the website for the Centers for Medicare & Medicaid Services (CMS) at cms.gov. So, Alex, let me start with you with a question of balance billing that I touched on briefly in my introduction. There are both restrictions on this practice and new requirements for providers, including ASCs, to make sure patients are aware of the new protections in the law. What does an ASC administrator need to know about these new prohibitions and requirements?

Alex Taira: 2:35
Sure. Well, maybe I can start a little high level from the patient side and then fill in some of the information you just touched on in your introduction. So, broadly, the law is really concerned with new protections for covered individuals. So, by “covered” we mean people with health insurance either through a group plan from their employer, from one of the state-based exchanges maybe or an individual health plan directly from a commercial insurer. For these individuals, the new law bans surprise bills in most emergency situations. So, you have an emergency medical situation, you get emergency care, even from an out-of-network provider, and you won’t get a wild out-of-network bill for that care. The law also bans surprise billing in some nonemergency situations, and this is where ASCs come in. So, under the new law, patients can’t be surprised billed when receiving care from an out-of-network provider at an in-network facility. So, for example, if a patient receives care at your ASC because the facility is within their insurance network but as part of that care received services from an out-of-network provider, like an anesthesiologist maybe, then they can’t be billed excessively for that out-of-network care. So, what does that mean for ASCs? Well, I think for one, all providers and facilities, ASCs included, are now required to disclose patient protections against surprise bills. So, you’ve got to provide all patients with information regarding their federal and, in some cases, state protections against surprise bills, and also about how patients could report violations. Additionally, ASCs will have to post a sign with disclosure information in a publicly accessible place, like a check-in desk, and also on their publicly available website. There are certain circumstances where the law will permit balance billing, but only if patients receive proper notice and consent to waive those balance billing protections. And that whole process has its own forms and requirements and also won’t be available for use in certain services like anesthesiology, radiology, pathology, etc.

Bill Prentice: 4:26
Got it. That’s a great answer and thank you for that. I’m going to ask both you and Kara to hold on for a minute while we hear a short message from our podcast sponsor, so we’ll resume this conversation in just a moment.

Narrator: 4:39
This episode of the Advancing Surgical Care Podcast is brought to you by in2itive Business Solutions, a revenue cycle management company that has served the ASC community for over 10 years. in2itive Business Solutions works with existing billing systems to streamline your processes and maximize your center’s reimbursements. Visit in2itive today at ascrev.com.

Bill Prentice: 5:07
Alright, Alex, we were talking about some of the requirements and things that ASCs are going to need to do, and one of the things that this new law and regulations also are going to require is that providers produce good faith estimates of the cost of care to both uninsured and self-pay patients, and it does so in some very specific terms. So, can you explain the level of detail that is required in these estimates and the permissible timeframes that ASCs are going to have to follow to produce them? And what, if any, additional resources are available to ASCs that are doing this for the first time?

Alex Taira: 5:40
Right. So, in my previous answer, we were kind of talking broadly about protections for covered individuals, so people who have health insurance already. But the good faith estimates at this time are primarily concerned with uninsured or self-pay individuals. So, before providing any service, providers and facilities, ASCs included, should ask patients about their insurance coverage status and whether whatever service they’re providing will be submitted as a claim to an insurance carrier. If the patient is uninsured or is doing self-pay for the service, then ASCs have to inform the patient, both orally and in writing, of their ability to request what CMS is calling a good faith estimate of the expected charges the patient might receive. So, similar to the patient disclosures I discussed, ASCs will also have to post this information about the availability of the good faith estimate in the facility and on their website. As I mentioned, the estimate has to include all the expected charges for the primary item or service, as well as any other items or services that might reasonably be expected to be provided alongside that. So, for ASCs, that might include the cost of the surgery, so the facility fee and the physician’s fee, but also any labs or tests or anesthesia that might be used during the procedure. And then you were talking about some specifics about how it has to be provided to a patient. And the estimate must be provided to the patient in a paper or electronic copy, even if it’s also given over the phone or verbally in person at check-in or whatever. And like you mentioned, there are some specific timeframes. So, the estimate must be provided within one business day if the procedure is scheduled within three business days in advance, or no later than three business days if the service is scheduled 10 or more days in advance. Was there anything I was missing there, Kara?

Kara Newbury: 7:17
I don’t think so, Alex. I just want to note that the good faith estimate must be within $400 of what the costs end up being in order for the facility or the provider to avoid the possibility of an independent dispute resolution process, which we’ll talk about a little later.

Bill Prentice: 7:37
Right, we will talk about that in a bit. And Kara, just to follow along on what you were just talking about and what Alex was just talking about. So, in the ASC world, there are often several providers responsible for patient care, from the surgeons in the facility, to anesthesiologist, to pathologist, labs, among others. And as Alex mentioned, the regulations assign the responsibility for collecting and assembling the estimates for this good faith estimate from those various providers from what CMS is calling a convening provider or facility. So, can you explain what this provision may mean for ASCs?

Kara Newbury: 8:15
Sure, Bill. So, the convening provider or facility is defined as the provider or facility that receives the initial request for the good faith estimate from the uninsured or self-pay individual. So, in the ASC situation, that could potentially be the physician’s office or that could be the ASC itself. And what’s important to note is that it’s when it’s requested by the patient. So, the ASC might think that it makes more sense for the physician’s office to give that information because that might be the first line that’s involved in scheduling. However, there is potentially also someone at the facility then who’s discussing payment options with the individual and might be just as well suited, if not better suited, to be the convening provider. I will note that in some ways, it doesn’t really matter for ASCs right now who is defined as the convening provider because you have to be able to provide the information on your fees when requested. So, for right now, even the convening providers are not going to be held accountable by the federal government if they’re unable to pull together the anesthesia fee and other ancillary fees at this time. There’s going to be some enforcement discretion right now. We will be reaching out to the federal government to try to gain some clarification on how exactly this will work once the convening provider or facility is responsible for collecting all of that information because it could be the case, and I’m guessing it may be, where an individual might ask multiple providers and facilities how much it’s going to cost them. So, it says here that the trigger is when the person asks, but I would say that it’s a good policy to have that even if you’re the second provider or facility asked that you should be ready to provide this information.

Bill Prentice: 10:16
Right. So, just to summarize to make sure I understand it and the listeners can understand, right now for this first year of implementation, an ASC will only be responsible for providing a good faith estimate to a patient of its charges. But the expectation is that in 2023, whoever that convening provider or facility is will be expected to provide that good faith estimate for all the charges for that procedure and that care, correct?

Kara Newbury: 10:47
Correct. For this year, and right now, we’re just talking about self-pay or uninsured individuals. So, it is also a requirement in the No Surprises Act that this good faith estimate be provided to healthcare insurers, but that rulemaking has not been promulgated yet, and so we’ll await further guidance on what exactly that looks like. But yes, right now, we’re just talking about self-pay or uninsured, and for January 1, 2022, through December 31, 2022, you’re only going to be held accountable for the good faith estimate of your facility fees.

Bill Prentice: 11:24
Got it. You mentioned a few minutes ago about disputes, about a dispute resolution process. So, this law obviously anticipates there will be those types of disputes primarily between providers and insurers, but also between patients and providers. Can you tell us how these resolution processes are expected to work at this time?

Kara Newbury: 11:44
Absolutely. And I alluded to this earlier, but what is going to trigger the access to the independent dispute resolution process is if a billed amount is deemed substantially in excess of the good faith estimate, and substantially in excess in this is being defined as $400 or higher. Now that’s per facility or provider. So, it’s not overall—once we do have the convening provider and you’re pulling together information for the physician, and the anesthesia, and the ASC and any other ancillary services, it’s not saying if you’re above $400 for all of that. Each individual facility or provider is going to be responsible for their share, and it’s going to be deemed based on each segment. And so, if the ASC’s good faith estimate ends up being $400 less or more than $400 less than what they end up billing the self-pay or uninsured individual, then that individual will be able to initiate the independent dispute resolution (IDR) process if they would like. They have 120 days after receiving the bill to initiate the IDR process and there will be what’s called a Selected Dispute Resolution entity that contracts with the US Department of Health & Human Services, and they will make the payment determinations regarding how much the person’s going to owe you. So, obviously, the goal would be to avoid as much IDR as possible, and so to try to provide as accurate of an estimate as you possibly can.

Bill Prentice: 13:26
Great. Alex, anything you want to add to that?

Alex Taira: 13:29
I would just say that there is a separate IDR process for payment disputes between plans and the providers themselves. But I think for this purview, Kara was specifically talking about the patient side, which is probably the more important side right at this moment.

Bill Prentice: 13:42
Well, that’s great. And obviously, as we’ve been saying, there’s going to be future rulemaking on other elements of this No Surprises Act and we’ll obviously be educating our members about that as those come up and, obviously, as we learn more about how this all actually gets implemented. Well, Kara and Alex, I want to thank you for participating in today’s podcast. And I want to thank you for the good work that you do every day to keep our members fully informed of the changes taking place on the legislative and regulatory fronts. So, I very much appreciate your willingness to be on this podcast. Anything you want to say in closing before we end?

Kara Newbury: 14:16
Really just one last plug for all the great resources that we have on our website. Alex was able to pull together a page on the website and it outlines a lot of these provisions and others that are applicable to ASCs. It also has a great resource section at the bottom with some of the different documents, templates, etc., that the federal government has put out. So, please do take a look.

Bill Prentice: 14:39
That’s great information. And as always, we ask our members to check our website because we have all sorts of great resources to help them there. So, before signing off, I’d like to once again acknowledge the support of in2itive Business Solutions, the sponsor of this episode of the Advancing Surgical Care Podcast. in2itive is a revenue cycle management company that has served the ASC community for over 10 years, and we value their participation in the ASCA affiliate program. So, until next time, thank you for listening and I wish you a very happy and healthy 2022.