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87TH LEGISLATIVE 87TH LEGISLATIVE
SESSION SESSION

The No Surprises Act clude the following, as they relate to the

provider: level of training or experience;
quality and outcomes; market share, prior
By Ezequiel Silva, MD contracted rates, and good faith efforts (or
lack thereof ) to join the insurer’s network.
Surprise billing occurs when a patient re- understand the requirements and details of in both emergency and non-emergency set- Regarding the insurance provider, the arbi-
ceives a bill for the difference between an the law. tings. Emergency care protections apply re- trator may consider market share and median
out-of-network provider charge and the The law seeks to take patients out of the gardless of whether the facility is in-network in-network rate paid. Other considerations
amount covered by the patient’s health insur- middle of payment disputes between insur- or out-of-network. They also include protec- include patient acuity and complexity, teach-
ance. Forty percent of adults report having ance carriers and physicians. In general, in- tion on all emergency services from initial ing status, case mix and scope of services per-
received an unexpected medical bill during surers and employers have favored the use of evaluation and treatment until the patient is formed. The arbitrator may not use
the preceding 12 months, and 13% of these benchmark payment standards to determine stabilized and able to consent to transfer to government payor rates, such as Medicare.
bills exceeded $2,000. (Reference: KFF payment amounts, whereas providers have an in-network hospital. These emergency-re- The effects of the new law remain to be
Health Tracking Poll (conducted August 23- favored an independent dispute resolution lated protections also apply to out-of-net- seen, and continued study is required. For ex-

28, 2018). Available at: (arbitration) process to settle disputes. In the work air ambulances, but they do not apply ample, the Act requires regular reports to
https://img.datawrapper.de/A5lJn/full.png. end, the Act does not use a benchmark stan- to ground ambulances. Congress regarding the outcomes from arbi-
Accessed January 25, 2021). dard. Instead, the law requires voluntary ne- Consumers are also protected from sur- tration cases, as well as the general impact of
Policymakers have long been aware of the gotiations between providers and insurers prise billing for non-emergency services pro- the law. Further, the law requires reporting
stress unexpected bills cause patients and with arbitration as a backup, should those ne- vided by an out-of-network provider during on impacts on health costs, provider consol-
have been eager to craft a solution. Several gotiations fail. care at an in-network facility. This includes idation and access in rural areas. The Govern-
states, including Texas, have laws to curb sur- An important goal of the new law is pa- ancillary services, such as those provided by ment Accountability Office is required to
prise billing. But state laws apply only to tient protection from surprise bills. The law an anesthesiologist, radiologist or patholo- prepare reports on (1) the law’s impact on
health insurance plans that are fully regulated seeks to achieve this goal by limiting patient gist. It also includes unexpected specialty care network adequacy, (2) impact on provider
by the state. This means that most health cost-sharing and providing greater trans- such as care from a neonatologist or other payment rates, and (3) reports on the inde-
plans in Texas are not impacted by state law. parency on costs. The law mandates that pa- specialist. The ACT allows patients to volun- pendent dispute resolution process, including
For example, plans that are covered by the tients who receive services from an tarily accept exemptions to the surprise relationships between providers and private
Employee Retirement Income Security Act out-of-network provider may be held respon- billing limitations, but this requires that the equity firms.
of 1974, so-called ERISA plans, are regulated sible only for the cost-sharing they would patient knowingly and willfully agree to use The impact of the Act on local practices re-
by the federal government. To address sur- have incurred from an in-network provider. an out-of-network provider. mains to be seen. What effects, if any, will the
prise billing in federally regulated plans, The requirement for greater transparency to We have established that patients are re- law have on contracted rates, network ade-
Congress passed the No Surprises Act patients comes in the form of an advanced ex- moved from payment disputes between quacy and patient out-of-pocket costs? It will
(henceforth, referred to as the ACT), which planation of benefits prior to a health-care providers and insurance carriers, but how are be important for practices to understand the
was signed into law at the end of December service. In addition to a good faith estimate these disputes resolved? The details on the in- Forthcoming regulations may define more This is allowable only if the cases involve the Act and its specific requirements to inform
2020 and goes into effect on Jan. 1, 2022. of costs and cost sharing, patients must be in- dependent dispute resolution (arbitration) specifically how the independent dispute res- same insurer, provider and medical condi- questions of this sort. Along the way, BCMS,
Enforcement of federal plans to which the formed whether their provider is in network process have important, practical implica- olution process occurs, but for now, the law tion. In addition, these cases must have oc- TMA, and AMA will be important conduits
law applies shall be the responsibility of the or out of network. When the provider is out- tions for physician practices. Before entering establishes that arbitration shall be “baseball curred within the same 30-day period. The to influence the evolving regulations around
Department of Labor. The law allows the fed- of-network, patients must be instructed on arbitration, 30 days must pass in order to style.” Under this style of arbitration, each Act includes provisions to prevent overuse of this law.
eral government to impose penalties of up to how to find an in-network provider for their allow for private negotiations between party proposes a single payment amount and the arbitration process. For example, the los-
$10,000 per violation. As with most new service. Insurers must maintain up-to-date providers and insurers. Should those negoti- the arbitrator must select one or the other. In ing party must pay the administrative costs Ezequiel "Zeke" Silva III, MD
laws, the statutory language provides a frame- provider directories, enable price-comparison ations fail, either party then has four days to other words, the arbitrator may not choose of the arbitration proceedings. Moreover, the is a member of the South Texas
work for implementation, but the specifics of information and a web price-comparison request arbitration. If no arbitration is re- an amount in between the two proposed party that initiates the arbitration process Radiology Group and Co-Chair
implementation will be defined by regula- tool. In instances where charges are substan- quested during those four days and the par- amounts. Once the arbitrator reaches a deci- may not take the same party to arbitration for of the AMA Digital Medicine Payment Advi-
tions to be published over the next year and tially higher than the good faith estimate, pa- ties fail to reach an agreed amount, then the sion, that decision is binding. However, con- the same service for 90 days after a decision sory Group, Chair of the AMA RVS Update
beyond. Usually, proposed regulations are tients may directly invoke the independent provider must accept the amount paid by the tinued negotiation is allowable. has been reached. Committee (the “RUC”), and Dr. Silva is on
subject to public comment, which heightens dispute resolution (IDR) process. insurer for the claim. Conflict-of-interest Providers may batch together multiple Arbitrators must consider several factors the Board of Directors of the Bexar County
the need for physicians and their practices to These consumer protections apply to care rules apply to the arbitrator. cases into a single arbitration proceeding. in reaching their decision. These factors in- Medical Society.

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