FEDERAL NO SURPRISES ACT (NSA): WHERE ARE WE TODAY?
By Edward Marasco, MPM, CMTE, EMT-P (ret.)*
PART I
The No Surprises Act (NSA) was passed in late 2020 and the regulatory process unfolded in a frenzy throughout 2021. Providers and health plans alike have struggled to prepare for the go live date of January 1, 2022. As we approach the end of April 2022, there are still more questions than answers in the process. Some of the burning questions we have received include:
How are NSA claims identified?
Most payors have a specific code assigned for NSA eligible claims, which is communicated on the explanation of benefits (EOB) at the time the claim is paid by the payor. QMC has found that payors incorrectly classify claims on a regular basis.
In certain cases, out of network claims have been deemed “non-NSA” by the payor. This has created problems with moving on to the Open Negotiation process and resulted in rejection of the Open Negotiation petition. If the provider cannot document an Open Negotiation process, the claim is technically ineligible for Independent Dispute Resolution (IDR).
In certain cases, the payor has treated in network claims as out of network claims subject to the NSA. This means the provider was paid incorrectly and requires the claim to be resubmitted. If the payor persists in paying the claim incorrectly, the provider may need to proceed through the Open Negotiation and (perhaps) the IDR process to get the claim paid correctly. Under the pre-NSA world, engaging the Patient in the process (by sending them a balance bill) was often the best way to get the payor to respond appropriately.
In certain cases, payors are designating and paying GROUND ambulance claims under the NSA. We know from both written communication and Tri-Agency online seminar communication that ground ambulance claims are presently NOT subject to the balance bill and related provisions of the NSA.
What do we know about the computation of the Qualifying Payment Amount (QPA)?
As of this writing, the payors have not been publishing the QPA on the EOB. Since the law and accompanying regulations require the notifying/requesting party to include the QPA on the application form for Open Negotiation and the IDR process, it has been our assumption the payors would identify the QPA they have computed for each region and include it with payment documentation. The QPA has NOT been included thus far. During several follow up telephone inquiries, payor personnel have referred to the QPA and, in at least one case, shared that the initial payment was a specific percentage of the QPA. However, the QPA computation remains a “black box” for providers currently.
What is the current experience with the Open Negotiation process?
QMC is filing for Open Negotiation as prescribed by the law (and associated regulations). The sample form that was provided by the Tri-Agencies did not include some essential information, including a data point that would isolate the specific patient/transport. In addition, some payors have requested that providers use the payor’s process to submit Open Negotiation requests.
The response from the payors has been less than interactive. In most cases, the payor has not actively engaged in any dialogue about the claim. To date, there have been no supplemental payment offers generated by the Open Negotiation process.
When will we be able to initiate the IDR process?
As of this writing there are several important items that impact the IDR process:
- IDR guidance that was initially published by the Tri-agencies was withdrawn in response to the outcome of the TMA Lawsuit. Updated guidance was just released last week. It provides some clarity on the process but several open questions remain.
- The portal is now open. According to a recent announcement published by CMS, providers will have 15 days from the opening of the online Independent Dispute Resolution (IDR) portal to submit their backlog of IDR requests…
- There are currently only ten (10) approved IDR Entities listed on the CMS website. This continues to be a concern from the perspective of potential backlogs in obtaining IDR decisions.
- The IDR rates for each of the approved entities are published on the CMS website. The rates range from $285 to $500 for single case submissions. The published batch rates offer a discount from the individual case rate.
- CMS has also published a grid that outlines eligibility for IDR. The grid identifies each state where claims should be handled through the Federal IDR process and which states where claims should be handled by the state prescribed process. While the grid provides some clarity, there are still many open questions.
The NSA remains a challenge to air medical services providers from a compliance, process, operational and financial perspective. Stay tuned right here for more information and updates as the process evolves.
*Ed Marasco is QMC’s Vice-President of Business Development and a veteran healthcare provider and administrator with over 40 years of experience in emergency medical services, reimbursement and consulting.
