Applicability of the No Surprises Act in the Anesthesia World

The No Surprises Act essentially went into effect on January 1, 2022, but portions of it have been delayed and litigated.  The Act itself can be broken down into two parts.  The first part is the Good Faith Estimates (GFEs), while the second part is the Independent Dispute Resolution (IDR) process.  In this article we will briefly break down these two parts of the Act and explain how they affect an anesthesia practice.

The intent behind GFEs is to provide uninsured or self-pay patients with an idea of how much their surgery or procedure will cost prior to the date of the surgery or procedure.  These prior to surgery estimates, must be provided by the convening provider within 3 business days of the request.  If the surgery is scheduled for 3 business days in advance, then the estimate must be provided within 1 business day.  If the surgery is less than 3 business days, there is no requirement to provide an estimate. If the actual cost is $400 or more than the estimate, then the patient can dispute the bill and it the provider’s responsibility to establish that the difference was from unexpected or unforeseen costs associated with the procedure or surgery.

The Act defines providers as convening and ancillary.  Anesthesia is considered an ancillary service. What does this mean?  First, beginning January 1, 2023, the convening provider (hospital system or surgery center) will be responsible for collecting estimates from all ancillary providers and presenting one total estimate to the patient.  Currently, ancillary providers, like anesthesia, are only required to provide an estimate if the patient contacts anesthesia directly and specifically request an estimate.  Even though there is not a requirement to provide the estimate to the convening provider in 2022, its important that an anesthesia group work with their hospital systems and surgery centers to have a system and process in place to be able to provide estimates beginning January 1, 2023.  Per the Act, anesthesia will be required to provide estimates on that date and there are monetary consequences if they don’t.  With the last couple months of 2022, establishing a system and identifying all expected costs associated with different procedures and surgeries will be paramount for all anesthesia groups.

The IDR portion of the Act is a little more complicated and currently under a lot of scrutiny.  The purpose of this part is to end balance billing by out of network providers.  There are some exceptions to the providers list but, unfortunately, anesthesia is specifically listed as an included ancillary provider the Act intended to cover. The Act outlines a list of factors to consider when determining the amount to bill for out of network services.  This same list is what is considered by the IDR entity to determine the final settlement amount.  This list of factors to consider when determining costs includes the qualifying payment amounts; any clause or agreement between provider and payer; level of training, experience, and quality and outcome measures of the provider or facility; market share held by non-participating provider; acuity of the individual receiving such item or service or the complexity of furnishing such item or service to such individual; and demonstrations of good faith efforts made by provider and payer to enter into network agreements and contracted rates during the previous 4 years.  The weight given to each factor has recently been litigated and the implementation of the process continues to be debated.

IDR process

Above is a concise snapshot of how the Act intended the process to be implemented, but due to many issues the process is currently not effectively operative.  The IDR portal to initiate the process, which can be accessed through the CMS website, continues to have numerous problems.  As providers covered by the Act, its important anesthesia groups continue to monitor the status of the portal and process as new developments continue to emerge every day. 

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