Industry Pushes Back Against Looming Surprise Billing Ban Compliance Date

Payers and hospitals call for a delay until 2023 as they wait for key elements of the NSA to be released and an end to the public health emergency.

As the Jan. 1, 2022, compliance date for the No Surprises Act (NSA) that bans surprise (balance) billing approaches, insurers and hospitals are asking to delay its implementation. The NSA was signed into law Dec. 27, 2020, and the first interim final rule (IFR) that laid the groundwork for implementing the NSA by the first of the new year followed on July 1, 2021. But with key elements still unreleased and the ongoing demands of the public health emergency (PHE), payers and providers say they need more time and information to fully abide by the Act’s requirements.

More Time is Needed

Many payers and providers are concerned that the rapidly approaching Jan. 1 start date is too soon for plans to determine qualifying payment amounts (QPAs) to out-of-network providers — the amounts paid to providers who are not in network but are providing care at an in-network facility — a much-disputed aspect of the NSA law. Upcoming final rules due in the next few months are expected to provide more details on the independent dispute resolution process.

Taking the opportunity to respond to the Interim Final Rule with Comment issued by the U.S. Departments of Health and Human Services, Treasury, Labor, and the Office of Personnel Management, America’s Health Insurance Plans (AHIP) said they fully support the protections the NSA proposes, but added, “We do, however, have significant concerns about whether health plans have sufficient lead time and regulatory clarity to implement and operationalize many of the non-consumer facing portions of these and subsequent regulations. We ask that there be a good faith safe harbor in place to implement those provisions of the law through 2023.” AHIP requested flexibility to allow health plans and issuers time to come into compliance and made several recommendations aimed to help clarify several outstanding details of the Act.

Waiting for the PHE to End

America’s Essential Hospitals also responded during the comment period for the IFR. Like AHIP they too strongly support the Act but feel the lack of full detail is problematic. In addition, they also voiced their concern about compliance from essential hospitals while the PHE is ongoing and asked for a six-month delay in the implementation date.

In his comments to Chiquita Brooks-LaSure, administrator for the Centers for Medicare & Medicaid Services U.S. Department of Health and Human Services, president and CEO Bruce Siegel said, “We are concerned about the January 1, 2022, start date. We appreciate the delay of the good faith estimate and advanced explanation of benefits requirements outlined in the frequently asked questions document published August 20, 2021. However, given the timing of this IFR release and comment period and the two additional interim rules expected later this year, there is very little time for our members to develop, implement, and train their staff on new policies and procedures related to surprise billing protections. Further, hospitals are overrun with COVID-19 patients due to the delta variant; their staff and resources are thinning. Implementing this rule during the COVID-19 public health emergency (PHE) would further deplete already limited hospital resources, taking them away from patient care and other aspects of COVID-19 PHE compliance. We ask that you delay the implementation and compliance deadlines to six months after the COVID-19 PHE ends.”

An Uncertain Conclusion

After reading the comments from these organizations and others, the common denominator across the board is clear: While there is overwhelming support for the NSA, the timing is inconvenient. Until the PHE ends, the remaining final rules are released, more information is provided, and key elements of the Act are hammered out, the healthcare industry will struggle to prepare.


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