Category: ACA and Policy, Cost of Healthcare, Government Programs, Health Insurance

The No Surprises Act Still Has A Few Surprises Left

I greet you today by saying “Bless you all” and I am so glad you are reading Straight Talk! It’s been a busy year already, where once again I think we can all agree NOTHING is as simple as it seems.

In the health care category, I offer you the federal No Surprises Act, which (sort of) went into effect on Jan. 1, 2022. I wrote in some detail about it on Jan. 7.

It’s only March, but some important things have changed. And since the No Surprises Act (NSA) could potentially affect any one of us on any given day as we seek out health care services, it seems a good time for an update. Remember, just a few years ago the Kaiser Family Foundation estimated that almost 40 MILLION surprise medical bills were sent every year. Billions of dollars worth. That makes it a very big deal.

How “No Surprises” Works

First, groups that previously agreed to the NSA as written are unhappy with the way regulatory agencies are saying they will enforce it. They have filed a wide variety of lawsuits that threaten the intent of the legislation — to protect you and your insurance rates from surprise bills.

The American Medical Association, Texas Medical Association, and a variety of provider groups are angry about the way the arbitration required by the Act is being described in the new regulations. The idea is if you are in an emergency situation and go to an in-network hospital or free-standing emergency room, if any doctors or other health care providers outside your network treat you, they cannot bill you more than they’d be paid if they were IN your network. Your normal IN-NETWORK cost-sharing and coinsurance would apply.

If that provider wants to bill you more, perhaps up to their normal billed charges (which could literally be ANY number with no limit), they will now have to seek that added compensation from your insurance company and leave you out of it. The provider has 30 days to negotiate a different amount directly with your insurance company. If they don’t get the dollar amount they really want, they can take the claim to an independent review or arbitrator to decide who is right. And that’s where things are getting sticky.

Arbitration Is Where It Gets Sticky

The federal government issued a rule that said the STARTING point for arbitration would not be the highest numbers in your marketplace (like the doctor’s retail prices), nor the lowest numbers (like Medicaid or Medicare numbers). Arbitration would start at a new number called the Qualified Payment Amount (QPA). The QPA is essentially an average of all in-network payment rates for the insurance carriers in a given region. So, not the cheapest in-network payment and not the most expensive, but an average that any in-network doctor would be paid. Seems a sensible compromise to surprise billing.

But it’s this “starting point” for arbitration that has the American Medical Association, American Hospital Association, Texas Medical Association, a bunch of doctors, the American Society of Anesthesiologists, national associations of emergency room docs and a few other specialist groups hopping “lawsuit” mad. They want the arbitration to BEGIN at their “retail” prices. You should know there are no limits or caps on these retail prices. They are often 500%, 600%, 700%, even 1,000% of what Medicare would pay them for doing the same service.

In other words, the providers in these lawsuits want your insurance company to pay them almost any amount with no predictability. Let me tell you as an economist, health insurance depends on predictability. Since the No Surprises Act didn’t give them protection to bill your insurance company retail prices (which are higher than insurance company prices) they are taking the whole NSA to court.

So those lawsuits are one problem. If the provider groups win, your premiums will go up, potentially a lot, and your network of doctors may get smaller. I mean, why join a network if you can send every bill through arbitration and get paid more? We are watching that very closely. It’s a real problem! I know nobody wants their insurance to get MORE expensive.

Don’t Sign Away Your Rights

The other problem is more insidious and a potential flaw in the law itself. When you are in a hospital, free-standing emergency room, outpatient surgery center and the like, you are protected from surprise billing unless you are given notice three days in advance (there are exceptions). But when you are in your doctor’s office, and he/she sends you down the hall for imaging or lab work, potentially to an imaging center or lab that is NOT in your network, the NSA offers you no protection. And, there is no requirement that these providers TELL you they are not in your network. The NSA currently does not protect you at out of network urgent care centers either. We need to be mindful of these limitations as we are out there seeking care.

To make things worse, I’m starting to hear from patients who are being required to sign away their NSA rights by their own health care providers before being treated! While we can’t anticipate every situation you might encounter as you’re out there seeking care, we would STRONGLY advise you NEVER to sign away your rights under the NSA. The end result could be very, very large bills that   could damage your credit if you don’t pay them. Maintaining that legal protection is important, and I would be very worried and think hard about going to someone else if any of my providers asked me to sign away my protection. But it is happening, right here in Louisiana. Be aware!

Another loophole I’m getting comments about concerns ground ambulance services. While the NSA contains robust protections for you when you use air ambulance services (the Association of Air Medical Services is also suing for the right to bill your insurance company at their highest rates when they refuse to join your network), there is no protection at all when you are using out of network GROUND ambulance services. For reasons we don’t fully understand, out-of-network ground ambulance services are not required to accept your in-network cost sharing. They can continue billing you at their maximum out-of-network rate if they refuse to join your network. That can be pretty expensive, too.

The Straight Talk is, we’ve got a lot of work left to do on the NSA before it really achieves its purpose of protecting you from being billed by out-of-network providers you were unaware of, or never gave permission to treat you. Getting this done right — protecting you without raising your health insurance rates even more — is something we will be focused upon for a long time.

Posted on: March 17, 2022

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