The Key Legislation

Legislative History

No Surprises Act In the News

What type of health plans are subject to the No Surprises Act?

Most self-funded health plans.

Fully insured health plans.

What claims are covered?

Out-of-network emergency care at an out-of-network facility.

Care at an in-network emergency facility from an out-of-network provider.

Non-emergency care at an in-network facility from an out-of-network provider without the patient’s informed consent.

Air Ambulance Claims

What about state surprise billing laws?

State surprise billing laws are not displaced by the No Surprises Act. If existing state law sets a payment amount and process for a surprise medical bill, the state law will govern the medical bill dispute. States without existing laws are permitted to pass surprise billing laws.

State laws typically apply to fully insured health plans, but not to self-funded health plans.

Who will enforce the No Surprises Act?

States will enforce the Act as to fully insured health plans.

If a state fails to substantially enforce the law or if the health plan is self-insured, the federal government will enforce it.

What is an Independent Dispute Resolution Entity?

An arbitrator by another name. It is the person that will determine how much the plan is required to pay and provider required to accept if the parties cannot come to an agreement before the Independent Dispute Resolution process is complete.

What information can an Independent Dispute Resolution Entity consider?

Median contracted rate in the geographic region for the same items or services.

Contracted rates between the provider and the plan during the previous four plan year.

Level of training, experience, quality and outcome measurements of the provider.

Market share held by the provider and/or plan in the geographic region in which the items or services were provided.

Complexity of the items or services.

Teaching status, case mix and scope of services.

Good faith efforts (or lack thereof) by the parties to enter into network agreements.

What information is an Independent Dispute Resolution Entity barred from considering?

Usual and customary charges.

Chargemaster rate.

Medicare reimbursement rate.

Children’s Health Insurance Program reimbursement rate.

TRICARE reimbursement rate.

Can an Independent Dispute Resolution Entity come up with its own plan payment amount?

No. The IDR entity must select either the provider’s offer or the health plan’s offer.

What will the process cost?

The IDR cost will be set in the regulations and has not been determined. However, the loser pays all IDR fees and, if a settlement is achieved during the IDR process, the parties split the fees 50/50 (or however they agree to split the fees in as part of their settlement).

What can we do to prepare?

The most effective way to prepare is to adopt a pure reference-based pricing plan, with the following components:

Carefully drafted plan documents that strengthen the rights of the patient to dispute the bills.

Avoidance of contracts with providers.

A defensible repricing mechanism.

A robust patient advocacy process that includes legal representation.