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No Surprises Act: Where We’ve Been and Where We’re Going

Recent regulatory changes have been challenging but it’s time for the industry to leverage them strategically

Take a ride with me.

It’s been almost a year since the No Surprises Act (NSA) took effect. The law is inarguably positive for patients but for many organizations, implementing new—not to mention nuanced—regulations has its challenges. The past year felt like a blur to ensure compliance with the new rules, a feeling akin to being a passenger inside a speeding car. Healthcare organizations and providers are expected to conduct business-as-usual within the confines of this metaphorical moving vehicle and there are plenty of starts and stops, twists and turns. Let’s reflect on what we learned from 2022 and focus on what to consider with NSA as we continue the journey into 2023.

A year passed: the long and winding road

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If we learned anything about the NSA this year it was that it’s a bumpy road. New regulations are by nature disruptive to the industry, but the NSA’s disruption has been compounded by the late launch of the government’s portal and continual updates to official guidance and the regulation itself. We saw lawsuits appear from the American Hospital Association (AHA) and the American Medical Association (AMA), among half a dozen others, challenging aspects of the NSA process. Most of the lawsuits were appeased by new regulations but at least one lawsuit continues and the AHA and the AMA have hinted that more litigation could follow. Additionally, we still haven’t seen what is required of advanced explanation of benefits (AEOB) or directory requirements. All of this is certainly a pothole in the unstable ground we’re traversing with the NSA.

And perhaps that aspect is the most troubling: how can organizations continue to operate smoothly when there hasn’t yet been a consistent rhythm established with this law? (I happen to work for a company with an answer to this, unsurprisingly. Just ask us.) Going forward, we expect more changes and updates to the government portal, the IDR process and agency guidance. The NSA will continue to take us on a zig-zagging journey where we may not know what is around the next corner. Organizations need to be prepared with an experienced navigator that can be nimble in the face of change.

What about the Transparency rules?

The Transparency rules on the other hand are as though we just packed the car; we’re ready to get going and there’s a lot yet to be seen. Compliance by hospitals continues to be low. Health plans appear to have done better launching their Machine Readable Files (MRF) in July, but a big compliance date is still ahead of us. On January 1, 2023, health plans are expected to have their consumer price comparison tools up and running for 500 most shoppable services.

Member adoption rate of transparency tools is yet to be determined, but I’m hopeful. While there is a generation gap with technology, patients and consumers are increasingly comfortable with it. That said, we are asking something new of healthcare consumers; our job doesn’t end with just fulfilling the requirements of the regulations. Education for patients and upgrades to technology will be essential.

It’s been a difficult implementation for the industry—hopefully, the benefits to consumers will be worth the enormous lift industry has had to undertake.

In the meantime, plans and providers can use the now public data, freed by the Transparency rules, to think more strategically about network contracts and reimbursement negotiation.

What to expect: Moving the consumer from the back seat to the driver’s seat

As of January 1, 2022, all providers were required to give good faith estimate (GFE) to uninsured and self-pay patients of how much services will cost. This is the largest challenge thus far. Providers don’t know the costs of other providers, there are multiple providers for procedures (radiologist, anesthesiologist, surgeon, etc.), and this will require providers to bill in a different way. Likely we will see things start to be packaged as a total procedure—truly a move toward further consumerism in healthcare.

On the same track, GFE’s and new billing practices paired with transparency initiatives is a roadmap for competition in pricing. It will be interesting to see if providers begin to advertise more along the lines of pricing and quality versus name recognition.

Additionally, with increased attention on the importance of mental health, the subject of mental health pricing parity comes into view. The government has pushed insurers to be equitable in reimbursement of mental health services (including telehealth) relative to other types of care—and consequently, insurers will need to ensure the reimbursement process is the same for all care. We are on the edge of significant changes in our billing and reimbursement system. Everyone will need help navigating where this road leads: plans, providers and patients.

These changes aren’t happening in a single arena. Consumer-centric healthcare programs and mental health initiatives are a bipartisan focus within government. When coupled with societal and technological changes, regulatory shifts and new processes are a definitive curve into which organizations must lean—and with intention.

Our industry has rightly been overwhelmed by implementation of the NSA and the transparency rules, and it’s been a scramble to gain control of the car. As the dust settles, however, and we get more comfortable with the rhythm of the road, what we learn from NSA negotiations and dispute resolutions can be applied to our strategies moving forward. It’s time to not only think about how we can stay on top of the changes, but take advantage of them. And as this trip progresses, the ultimate goal is to have the consumer do more of the driving.

About Matthew Albright:

Matthew Albright is Chief Legislative Affairs Officer for Zelis with over 15 years of regulatory, political and public affairs experience. Prior to joining Zelis, Matthew oversaw the certification program at the Center for Affordable Quality Healthcare (CAQH) and Committee on Operating Rules for Information Exchange (CORE) to ensure conformance with the requirements of the Patient Protection and Affordable Care Act (PPACA). He also served as Director of the Administrative Simplification Group for the Centers for Medicare & Medicaid Services (CMS), has written numerous state and federal regulations and is a published author on bioethics.

Matthew hold a Masters of Divinity in Bioethics & Medical Ethics from Harvard University (M.Div.), and a Bachelors of Arts in Journalism from the University of South Carolina.

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