NSA Fieldwork Paper
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Lakeland University *
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BA770L1
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Medicine
Date
Dec 6, 2023
Type
docx
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Effective January 1, 2022, the No Surprises Act took effect to protect consumers from
surprise medical bills. The legislation was included in the Consolidated Appropriations
Act, 2021, which was signed into law by President Donald Trump in December 2020.
The No Surprises Act is part of the 29 U.S. Code Title 29
§ 1185e. The act advises
group health insurers that offer benefits to services of an emergency department of a
hospital or an emergency service in an independent freestanding emergency
department, the plan shall cover the services. If a non-participating provider provides
the services no prior authorization is required, nor any limitation on coverage that is
restrictive compared to services that are provided by a participating provider. The cost-
sharing requirement cannot be greater than if the services were provided by a
participating provider and the cost-sharing payments made by the participant for the
emergency services will be counted toward any in-network deductible or out-of-pocket
maximum.
The second piece to the No Surprises Act contains regulations for qualifying payment
amounts. Because the act was signed in December 2020, it included language to
outline the methodology the group health plans shall use to determine the qualifying
payment amounts no later than July 1, 2021, by the Secretary, in consultation with the
Secretary of the Treasury and the Secretary of Health and Human Services. It shall use
insurance coverage in the group market, differentiating by large group market and small
group market, geographic regions, considering rural and underserved areas including
health professional shortage areas defined in section 254e of title 42. The language will
also provide a process to receive complaints of violation.
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The definitions of the act are vital to help a formulate opinions, help interpret rules and
provide guidance. This subpart defines eleven items. Definition one is an “emergency
department of a hospital “includes a hospital outpatient department that provides
emergency services. Definition two is an “emergency medical condition” which is a
medical condition manifesting itself by acute symptoms of sufficient severity. Definition
three is “emergency services” which includes medical screening and additional services
to stabilize the patient, regardless of the department of the hospital where the additional
services where furnished. Definition three is “independent freestanding emergency
department” which is a geographically separate, distinct, and licensed separately from a
hospital. Definition four is “qualifying payment amount” which includes the median rate
for a contracted provider for services rendered in 2022 and for services rendered during
2023 or subsequent years the qualifying payment amount is determined under this
clause for such a service is increased by the percentage of increase in the consumer
price index for all urban consumers over such previous year. Definition five is
“nonparticipating emergency facility; participating emergency facility” which means if a
health plan does not have a contractual relationship the facility is nonparticipating and if
the health plan does have a contractual relationship the facility is participating. Definition
six is “nonparticipating providers; participating providers is a physician or a healthcare
provider which is acting within the scope of practice who does not have a contractual
relationship is nonparticipating and if they do have a contractual relationship, is a
participating provider. Definition seven is “recognized amount” which means coverage
was made within the parameters of the specified State law in which the nonparticipating
facility and provider are located, within the parameters of the qualifying payment
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amount, or within the parameters of a State with an All-Payor Model Agreement. Per
Anderson and Herring, an All-Payor Model Agreement is all insurers in a particular state
have a single payment rate for each service that all health insurers and health systems
will accept. Definition eight is “specified state law” which means a state law that
provides a method for determining the total amount payable under such a plan.
Definition nine is “stabilize” which is defined in section 1867(e)(3) of the Social Security
Act (42 U. S. C. 1395dd(e)(3)). The Social Security Act defines “to stabilize” with respect
to an emergency medical condition, that no material deterioration of the condition is
likely, within reasonable medical probability, to result from or occur during the transfer of
the individual from a facility. Definition ten is “out-of-network rate” is services furnished
in a State during a year to a participant of the health plan from a nonparticipating
emergency facility or nonparticipating provider defined under the recognized amount.
Definition eleven is “cost-sharing” which includes copayments, coinsurance, and
deductibles.
My interview was with Daniel Brzozowski, Associate General Counsel for our Midwest
market at my employer. He has been an attorney for over seventeen years, which the
last eleven years within healthcare. He is licensed both in Illinois and Wisconsin. His
role within our system primarily focuses on managed care, population health, and
revenue cycle with a niche in telehealth services. As a revenue cycle leader, I work in
tandem with direction from Daniel and his department to assist in day-to-day functions
in interrupting how to bill for the No Surprises Act. Our system is one of the top four
largest systems in the United States, so it is vital to have clear communication when
implementing changes. The No Surprises Act has a significant impact within healthcare
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and changing healthcare to be more patient focused. When I asked what he has noticed
in changes, he indicated it is not necessarily a one stop shop for all. Patient no longer
go to the same doctor, same place, they have shifted to shopping around. Health plans
have become more tedious and complicated to understand, which can cause confusion
on what services are covered versus what services are not.
Per Brzozowski, his department is notified of law changes through several avenues.
They rely heavily on Centers for Medicare and Medicaid Services (CMS) to provide
clear direction on interpretation of definitions and offer guidance on the independent
dispute resolution process. The Wisconsin Hospital Association collaborates with
leaders from organizations to advocate for public policy for both state of Wisconsin and
Federal health care issues impacting reimbursement and coverage. With being a
member of WHA, we lobby for positive changes and are privy to potential goals the
WHA lobbies for. Like WHA, we also align with American Medical Association (AMA).
We have members within who lobby for the future of medicine and are aware of the
conversations before they are voted into Congress.
Because this act is national, I asked Mr. Brzozowski if he works with peers from other
health systems to discuss their interpretation and he stated, “not verbatim, it may come
up in conversation at mutual events, but would always do our own research and
interpretation of how our organization wants to manage the risk”. I asked what his
interpretation of the risk was, and he indicated “the potential to bill a patient for an
incorrect amount and thus end up reporting the case(s), no healthcare system wants to
be on the radar of CMS.”
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Our interview progressed into the challenges of the act and how to implement
recommendations from a system. Mr. Brzozowski outlined three main challenges
regarding this specific act. One he referred to a “moving target of sorts.” Two is
understanding what the “definitions” mean. Three was the “Independent Dispute
Resolution.”
He mentioned at the time the act was passed in December 2020, there were gaps in the
process to be outlined at a future state. For example, how are health plans going to
report to providers and facilities when a service is considered part of the no surprise
act?
“What is the most challenging aspect of this act”? Per Brzozowski, the number of
potential insurance plans and the fact that states can implement their own processes for
independent review. The definitions regarding emergency services leaves room for
interpretation. Emergency services from a facility standpoint are based on where the
patient was seen. If the patient presented to the emergency room for a service, we treat
the patient based on their needs and bill under the location of where the patient was
seen with a diagnosis of the service rendered. The act defines emergency services with
respect to an emergency medical condition means a medical screen examination (as
required under section 1867 of the Social Security Act [42 U.S.C. 1395dd] and
treatment including ancillary services routinely available to the emergency department
to evaluate such emergency medical condition. 42 U.S.C. 1395dd defines emergency
medical condition as a medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that the absence of immediate medical
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attention could be expected to result in serious jeopardy to the patient’s health, bodily
functions or serious dysfunction of any bodily organ or part. It also specifically defines
emergency medical condition with respect to a pregnant woman who is having
contractions that there is inadequate time to affect a safe transfer to another hospital
before delivery or that transfer may pose a threat to the health or safety of the woman or
the unborn child. If a patient was in severe pain and we treated the patient, the
insurance may not consider the service emergent based on the diagnosis thus causing
a conflict between the facility, insurance and potentially patient if the patient became
responsible for any balances. The challenge to include ancillary services also causes
room for interpretation of what is needed. The additional services are based on the
recommendation of the provider on staff, but may not be recommended by all providers,
so if an ancillary service was ordered, the insurance may not pay for service if they
deem the service not emergent. Per Medicare Resources.org ancillary services are
diagnostic x-rays, lab tests, physical therapy, and various screening tests.
In addition to all the scenarios that could present in an emergency room, we also must
manage all the insurance plans we may see with which we are not contracted. It can be
labor intensive to manage resources to try to accurately receive reimbursement for
services rendered. Patient’s present to our emergency department and do not realize
the insurance they have is a limited benefit plan and has no emergency benefits, but
feel because of the act, they can go to an emergency room and receive care without
having to pay the full cost of the visit. Our organization works hard to notify patients
prior to receiving services if their insurance is out of network and provide an estimate
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but patient’s can lack benefit education and may not understand what their insurance
covers.
Another challenge to both facilities and insurance companies is calculating what the
qualified payment amount for service should be. Both parties need to be privy of what
the median of the contracted rates recognized by the plan are to calculate
appropriateness of the payment. When an out-of-network rate is not paid according to
the calculated median of the contracted rates, the steps to negotiate with the insurance
are time restrictive and labor intensive for both parties involved. The open negotiation
form needs to be submitted to the payor within 30 days of receiving notice of the non-
qualifying payment. Once you submit the open negotiation form, the insurance has thirty
days to respond. If no resolution, then next step can be taken, which is the independent
dispute resolution managed by Health and Human Services.
My analysis of the act has allowed me to utilize this information and apply in directly into
understanding my work. Unfortunately, I lend a bias view due to my twenty plus years in
healthcare revenue cycle. I understand the need from a consumer standpoint not to be
surprised with unexpected bills, especially in an emergent situation. Many emergent
visits necessitate the closest emergency room, not the place necessarily preferred.
Personally, the act could be simpler with detailed definitions and more standardized
payments. For example, providing definitions of when an ancillary service is rendered
part of the emergency visit. Many times an emergency visit can lead to an inpatient stay
which can involve surgeries, labs, etc., Once a patient moves to inpatient, it is now
billed with a different place of service, so many insurance companies will dispute these
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charges as they are not part of the emergency place of service, but in reality, the patient
isn’t stable enough to move to another location and are necessary so the steps to seek
payment are labor intensive. My suggestion on how to calculate the payment would be
based on Medicare fee schedule. Medicare already calculates their reimbursement for
Medicare beneficiaries each year, so I would recommend utilizing those fee schedules
and have insurance companies pay equal to what Medicare would pay. If a patient is out
of network for an emergency room service, the facility and provider would be
reimbursed at Medicare rates and be done. Medicare rates are calculated by region to
account for different markets, so logistically it is already considering markets like what
the act defines as part of the qualified payment.
In conclusion, the process outlined for our business is labor intensive involving all
avenues of the business. We have taken a low-risk approach, which for our facility
means we have set guidelines on when we will utilize resources to work on negotiations
and look for trends to potentially work directly with those insurance companies to obtain
a contract for emergency services, so they are considered in network for patients.
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References
Ending surprise medical bills
. CMS.gov. (2023, June 14).
https://www.cms.gov/nosurprises
What is the no surprises act?
. healthinsurance.org. (2023, July 10).
https://www.healthinsurance.org/glossary/no-surprises-act/
Code of Federal Regulations. (n.d.).
https://www.ecfr.gov/
Anderson, G., & Herring, B. (2015, August 1).
The all-payer rate setting model for
Pricing Medical Services and Drugs
. Journal of Ethics | American Medical
Association. https://journalofethics.ama-assn.org/article/all-payer-rate-setting-
model-pricing-medical-services-and-drugs/2015-08#:~:text=Their%20objective
%20is%20to%20negotiate%20a%20single%20payment,on%20all%20insurers
%20and%20all%20hospitals%20and%20clinicians.
Legal Information Institute. (n.d.-a).
29 U.S. Code § 1185e - preventing surprise medical
bills
. Legal Information Institute. https://www.law.cornell.edu/uscode/text/29/1185e
Legal Information Institute. (n.d.-b).
42 U.S. Code § 1395DD - examination and
treatment for emergency medical conditions and women in Labor
. Legal
Information Institute. https://www.law.cornell.edu/uscode/text/42/1395dd
What are ancillary services?
. medicareresources.org. (2023, February 1).
https://www.medicareresources.org/glossary/ancillary-services/
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