MedCity Influencers, Legal

Initially Aggressive on Deadlines, NSA Rollout Becomes Measured

If the NSA-implementing agencies could plot out and publish their plan for adopting standards, publishing regulations, and setting new compliance dates for the NSA AEOB and provider directory requirements, it would help tremendously to level set on expectations and help organizations budget and plan for actual implementation.

There have been numerous industry complaints – and a number of lawsuits – about the Centers for Medicare & Medicaid Services’ (CMS) rollout of the No Surprises Act (NSA). Nevertheless, CMS and the other NSA implementing government agencies have actually taken a measured approach to the implementation of the statute as a whole, especially given that Congress initially proposed compliance deadlines on the industry that many perceived to be aggressive, if not wholly impracticable.

While CMS has published regulations and built infrastructure that prohibit balance billing and implement the related Independent Dispute Resolution (IDR) for provider and payer reimbursement disputes, CMS has not unveiled regulations for Advanced Explanation of Benefits (AEOB), or the NSA requirements related to provider directories.

And the NSA’s AEOB and provider directory requirements will be considerably more difficult for the industry to implement than the statute’s more publicized balance billing prohibitions.

It’s important to keep in mind that CMS and other agencies are implementing a law that was passed by Congress with substantial bipartisan support. Congress initially set forth NSA-related deadlines that were largely untenable, but, overall, CMS and the other implementing agencies have successfully pushed back on the deadlines, even though the law itself does not contain provisions for them to do so.

It’s also important to understand where the authority is in mandating the AEOB and provider directory rules: If certain sectors of healthcare want to see these requirements go away completely, they will need to push on Congress, not on federal agencies.

Listening to industry’s concerns 

To date, CMS and other agencies appear to be listening to the concerns of stakeholders and will continue to extend the remaining NSA timelines. Part of the issue is that the agencies have a tremendous amount to do on their end – let’s call it infrastructure work – to meet virtually every NSA requirement being put on the industry. And the agencies have learned – from the ACA healthcare.gov to this year’s NSA IDR portal launch – that their own infrastructure needs to be built and functioning before requirements on the industry are mandated.

Otherwise, there will be more effort, more time spent, and more frustration for everyone involved.

For example, with the NSA’s AEOB, before requiring providers to produce Good Faith Estimates (GFE) beyond insured and self-pay patients, the agencies need to adopt electronic standards and operating rules on how to exchange the GFE data between provider and plan, as well as plan and member. Obviously, the agencies know that it makes no sense to create paper-based, manual GFE and AEOB processes – it has to be automated and electronic. And healthcare organizations will not benefit by developing myriad, disparate electronic formats and processes – the data exchange has to be standardized and that standard will be best served if it’s set by the government.

A perfect example of this is the way the government adopted HIPAA electronic standards for claims payments and other administrative transactions.

The national provider directory conundrum

The same is true for the NSA provider directory requirements, for which CMS has put out a request for information (RFI) asking industry leaders whether the government should build a national provider directory. Whether you think the government should do this or not, the RFI shows that the agencies, in good faith, are thinking through how they can help organizations meet the requirements of the NSA.

Building a national provider directory would, in comparison, make the build of healthcare.gov look like a walk in the park. As a former regulator at CMS when it was implementing the Affordable Care Act, my view is that the intention to build a national provider directory is akin to saying CMS is coordinating a manned mission to Mars. It’s an almost impossible task that would take an astronomical amount of money and energy to pull off.

Due to the work that both industry leaders and the agencies have to do to develop the digital “infrastructure” to meet the directory and AEOB requirements, I think it will be years before any compliance dates are set in stone.

A glide path for standards and compliance dates

What the industry really needs from the government agencies at this point is a road map, or, as the Workgroup for Electronic Data and Interchange (WEDI) said in a recent letter to the secretary of HHS, a “glide path” that explains how the industry and the government will develop standards and operating rules together. In the letter, WEDI asked for the government’s expectations on vetting and testing standards and an estimate on timelines for implementing NSA regulations.

If the NSA-implementing agencies could plot out and publish their plan for adopting standards, publishing regulations, and setting new compliance dates for the NSA AEOB and provider directory requirements, it would help tremendously to level set on expectations and help organizations budget and plan for actual implementation. In the meantime, the agencies can show Congress the comments they are getting from industry on the impracticability of the NSA deadlines and push back if lawmakers pressure them for tighter deadlines.

And the industry will also have a chance to push on Congress – not the agencies! – if it wants to wholly eliminate some of these outstanding NSA requirements.

Photo: diego_cervo, Getty Images


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Matthew Albright

Matthew Albright is the chief legislative affairs officer at Zelis. He has over 15 years of regulatory, political, and public affairs experience. Prior to joining Zelis, Matthew oversaw the certification program at the Center for Affordable Quality Healthcare (CAQH) and Committee on Operating Rules for Information Exchange (CORE) to ensure conformance with the requirements of the Patient Protection and Affordable Care Act (PPACA). He also served as Director of the Administrative Simplification Group for the Centers for Medicare & Medicaid Services (CMS), has written numerous state and federal regulations and is a published author on bioethics.

Matthew holds a Masters of Divinity in Bioethics & Medical Ethics from Harvard University (M.Div.), and a Bachelors of Arts in Journalism from the University of South Carolina.

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