New CMS Guidance on No Surprises Act

Episode # 67 FLATLINING Podcast Recap

The Centers for Medicare and Medicaid Services (CMS) recently released their guidance following the Texas Medical Association (TMA) lawsuit that directed them to scrap earlier instructions. In this episode Ron and Matthew break down what this means to providers.

The No Surprises Act (NSA), a law designed to help patients not get sticker shock when treated by an out of network physician at an in-network hospital, has had a rocky implementation, and created a challenging environment for hospital based physician groups.

The TMA took to court CMS on their handling of the implementation of this Trump era law with several lawsuits, the one in focus on this episode of FLATLINING zeroed in on the updated guidance on the Quality Payment Amounts (QPA) from CMS. Ron explained that the initial CMS guidance was found by the judge in the case to be contrary to what the NSA stated, this new guidance is in response to the judge’s ruling. Ron and Matthew’s analysis is that CMS’s response was “underwhelming.”

Ron pointed out that how to calculate the QPA is still left to the payers to determine, and he took special issue that CMS stated it would use “Enforcement Discretion” when following up on complaints through the Independent Dispute Resolution (IDR) process. Which Ron explained was possibly a hint to the payers not to worry too much about any CMS interventions. Additionally, CMS stated they would not take action for at least the next six to twelve months.

You may recall that the IDR process was backlogged at CMS, and they responded by changing some of the IDR rules earlier this year, for example upping the administrative fees per complaint, basically making process more costly for providers. These factors were addressed in the most recent ruling.

Ron said the seemingly reluctant approach CMS has had toward the NSA could be for a couple of reasons. First, the NSA was a Trump era law, and passed with bipartisan support, but Health and Human Services Secretary Xavier Beccera is not a fan and Ron senses that he would like to dictate to providers what they should get paid. The second possible influencer in this mix could be the payers. Ron said that it is likely that payer lobbyists are working hard to keep the QPA calculations murky as to provide them with the best position in negotiations or the IDR process.

What does all this mean in the near term? Ron explained that for the next six months it will be much like the last six months. He said when payers thought that the outcome might be more definitive from CMS, payers were a bit more likely to be flexible in their negotiations. With this recent guidance, Ron thinks that payers may not feel compelled to negotiate effectively. He also shared that several clients have been threatened with termination by payers to force them into lower paying contracts and not even meeting providers requests to meet current inflationary cost increases to delivering healthcare.

Although the NSA focuses on hospital and emergency room type practices, Ron said all physicians need to stay up to date on this issue. The key reason he explained is that in this case you have a government agency wanting to dictate the amount of profit an industry can make, and what is to stop that agency from broadening its directive to include other types of practices?

Ron’s take on the NSA is that all in all it is a good law, it provides protections to patients and providers, and ensures that some providers don’t overcharge for services. He said there really isn’t much of anything to fix with the law, it just needs to be enforced as written.

For the latest information from CMS on this topic be sure to check out the following links: Plans and issuers requirements and resources and Payment disputes between providers and health plans

Listen to the full epidsode of the podcast here.