Surprise Bill Legislation Means Big Changes for Patients and Hospitals
Some people experiencing life-threatening symptoms put off coming to the ED for a strange reason — they were stuck on the phone with their health plan.
“I have seen people have bad outcomes because of waiting too long to come in because they were trying to find out which hospital was in-network,” says Bradley J. Uren, MD, FACEP, chair of the American College of Emergency Physicians federal government affairs committee.
Certain patients might experience heart attack symptoms for hours. Instead of going to the ED immediately, they called their health plan. “That should never be something that someone should be concerned about when they have a life-threatening condition,” Uren says. “People should have the confidence that they can go to an ED — any ED — and get the care that they need.”
Many people have heard horror stories from friends or family about the financial toll of an ED visit — or, at a minimum, are aware of the problem because of news coverage. “This has been in the public consciousness for a while,” Uren notes.
It is not just out-of-network status causing huge bills. Many stem from insurance paying little despite the visit’s in-network status. “The ‘surprise’ is often that you didn’t have the insurance coverage you thought you had,” Uren observes.
Many insured patients are hit with high copays, deductibles, or coinsurance, which can result in astronomical bills. “They remain in network, but the insurance doesn’t cover what they thought it would,” Uren says.
Patients or family members might try to be proactive about the situation. Patients ask if the treatment ordered by the emergency physician (EP) was something that needed pre-authorization from their insurance company. Others express concern that if they do not secure advance permission from their insurer for the test, procedure, or admission, they may face a large bill later.
“Even if I knew what someone’s insurance was, it’s not possible to figure out in real time what they will owe,” Uren explains.
It is impossible to predict which diagnostic tests, lab tests, or level of care are going to be needed, or which providers (surgeons, cardiologists, or others) are going to be involved. “In many cases, we just can’t provide that insurance granularity at the time of care,” Uren says.
Patients might hesitate to go through with the recommended evaluation specifically because they are worried about cost. This requires a difficult conversation between the EP and the patient (i.e., why the exact dollar amount that will be covered by the health plan just is not the priority at the moment).
“An explanation is needed on why I don’t think we should delay care to look at those things. Because at that point, insurance is not the most important thing, their life is,” Uren says.
Uren puts it this way: “This is the test that the best evidence says should be ordered. If it was one of my family members, this is the test I would want for them. We will do everything we can to work with you on the back end, but this is the care I believe you need right now.”
Most patients appreciate the honesty, and agree to the recommended testing. “Some do choose to refuse testing or treatment despite medical advice, citing persistent concerns about large copays or uncovered expenses,” Uren adds.
On Dec. 27, 2020, the No Surprises Act was signed into law as part of the Consolidated Appropriations Act of 2021. The No Surprises Act addresses surprise bills at the federal level, and will go into effect Jan. 1, 2022.1 Among other things, the legislation will ensure that if out-of-network care is provided, the patient’s cost will be the same as if the provider was in-network.
“Implementation of the act will likely add another layer of complexity to revenue cycle processes,” says Helaine I. Fingold, JD, a healthcare attorney in the Baltimore office of Epstein Becker Green.
A few states have enacted laws to protect enrollees from surprise billing. These existing laws apply to fully insured plans, and will continue to apply under the new law. “The No Surprises Act will add self-insured plans to the surprise billing mix,” Fingold explains.
For self-insured plans, revenue cycle departments will need to identify affected out-of-network services, calculate cost-sharing and payment amounts based on the plan’s average contracted rate, and manage the dispute resolution process, through which out-of-network hospitals can seek higher payment amounts. “Each of these steps will require a defined business strategy,” Fingold says.
The best approach is going to vary depending on the health plan. For instance, some plans will take the approach of making an initial payment that is below the average contracted rate. The nonparticipating hospital that provides ED services to an insured patient can either accept that payment amount or push for a higher payment using the dispute resolution process. “The No Surprises Act does not provide protection for all services received out of network,” Fingold notes.
It only protects enrollees from receiving a surprise bill for emergency services provided by a nonparticipating provider at either an in-network or an out-of-network facility, or for certain nonemergency services provided by a nonparticipating provider at an in-network facility. “It does not cover, for example, services provided by a nonparticipating physician or practitioner in a physician’s office or other nonhospital clinic,” Fingold explains.
A patient still could receive a surprise bill for covered nonemergency services from a nonparticipating provider outside the hospital setting. “The new law should not result in hospitals having to write off entire bills for emergency services,” Fingold says.
However, for out-of-network ED care, hospitals might have to write off the difference between billed charges and the approximate amount they would have received had the hospital been in network. In states without surprise billing laws, hospitals can use the new law’s negotiation and arbitration processes to seek higher reimbursement amounts.
“Ultimately, facilities will need to assess the cost of bringing such challenges to determine the viability of operating out of network as a business strategy,” Fingold says.
From the patients’ perspective, the legislation is at least somewhat reassuring. Yet people are likely to remain anxious about surprise bills. “Bad news travels fast, and good news travels more slowly,” Uren says. “It’s a major problem, and it will take years to unwind the anxieties that have been created.”
Revenue cycle staff still need to alert patients about the possibility of a surprise bill. “But to the extent that this law can take patients out of the middle, I’m pretty happy with that,” Uren reports.
- American Hospital Association. Detailed summary of No Surprises Act. Jan. 14, 2021.
“Bad news travels fast, and good news travels more slowly ... It’s a major problem, and it will take years to unwind the anxieties that have been created.”
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