The No Surprises Act: What to Expect

Jan 19, 2022
Munsch Hardt Legal Health Care Update

It should be no surprise that the No Surprises Act is the subject of much debate between providers and insurers. Touted as “…the most critical consumer protection law since the Affordable Care Act,” the Act, which just took effect on January 1, 2022, is already being challenged in court through various lawsuits. The No Surprises Act intends to protect patients from unexpected medical bills from out-of-network providers or facilities through the provision of notices, consents, and disclosures related to access to care, costs, and patient rights. The Act also provides insurers and providers a mechanism to determine what the payment for out-of-network care should be, including an independent dispute resolution process.  

Critics argue the regulations implementing the dispute resolution process deviate from the Act and unfairly disadvantage the providers by giving more weight to one calculation (that is insurer- formulated) rather than equally considering multiple factors that arguably provide for a more balanced calculation. On November 5, 2021, 152 members of Congress signed a letter stating the provision in question “…is contrary to the statute and could incentivize insurance companies to set artificially low payment rates, which would narrow provider networks and jeopardize patient access to care – the exact opposite of the goal of the law.”

In many ways this is an age-old dispute between insurers and providers, which is now being fought on the fresh battleground of the No Surprises Act. However, even while this controversy persists, compliance obligations exist. The American Medical Association recently published a toolkit for physicians titled “Preparing for Implementation of the No Surprises Act” to assist physicians in navigating the requirements. Three important obligations that physicians should pay attention to immediately are: (i) which providers and facilities are subject to the new Act; (ii) disclosure requirements related to patient protections against balance billing (see the CMS model notice here); and (iii) notice and consent requirements certain providers must use to balance bill in certain settings (note that the Act prohibits balance billing in certain situations).

As the disputes surrounding the No Surprises Act get resolved and providers and insurers implement the regulations, we will see if the goal of removing the patient from the “food fight between insurers and providers” results in a more transparent, competitive, and fair health care system, as we all hope will be the case.

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