Even for an industry rife with complex regulations, complying with the ban on surprise billing may prove especially "daunting" for healthcare providers, experts say.
The No Surprises Act passed by Congress went into effect earlier this year, tackling one of the most vexing problems in healthcare: unexpected medical bills that leave patients stuck in the middle between payers and providers.
It has been a persistent issue for American consumers receiving care from hospitals or doctors outside of their insurance networks.
The bill is best known for its signature achievement that protects patients from out-of-network bills in emergencies. It also shields them if they go to an in-network facility for a procedure but are unknowingly treated by an out-of-network clinician.
Complying with the law, which now bans most forms of surprise billing, certainly won't be a cakewalk for healthcare systems, according to experts.
Implementation will be "very daunting," said Manatt professional services firm partner Harvey Rochman, who has likened the legislation to a "small ACA," the landmark healthcare bill from 2010 that reshaped the industry.
That's because there are lesser-known requirements of the bill that may come as a shock to some practices and are onerous to put in place, compliance experts said.
Strict rules, deadlines for providing good-faith estimates
"If you had to single out one thing that is really the most complex and difficult ... it's the good-faith estimate," said Rochman, who is working directly with provider clients on compliance.
The bill goes beyond outlawing balance bills from fly-by out-of-network doctors, air ambulances and emergency rooms.
A much broader range of providers are required to hand over a "good-faith estimate," or a cost estimate for a procedure, for uninsured and self-pay patients when they ask. Practices are also required to alert patients they're entitled to such an estimate.
It's this requirement that may catch some practices off guard, according to compliance experts.
A dermatology practice is a good example, according to Varsha Gadani, an attorney at law firm McGuireWoods, who is working directly with provider clients on compliance.
Dermatology practice leaders may think they're not subject to the No Surprises Act because they don't provide emergency services at hospitals, Gadani said. While they may not be subject to that particular aspect of the law, they would be subject to providing good-faith estimates.
"The No Surprises Act is a lot more convoluted than you initially realize," Gadani said.
On the face of it, providing cost estimates to patients may seem like a small hurdle to clear, but there are additional wrinkles that make it more complex and harder to put into practice.
Providers are under strict time constraints and must hand over an estimate within one business day after the procedure is scheduled in some situations. In situations where the procedure is 10 days or more after scheduling, providers may have three days to draw up an estimate.
In addition, providers soon will be responsible for anticipating other services a patient may need as part of the procedure and will have to collect cost estimates from other providers to include in the overall estimate. Regulators decided to delay enforcement of this provision in 2022 because it's so complicated, Rochman said.
The "convening provider" will be responsible for assembling an overall estimate, but experts say it's not always clear who should play the role of convening provider. It can be the provider who schedules the procedure — but is that the surgeon or the hospital?
"So this is a very complex obligation, and it all has to be done in an extremely short amount of time — days at best," Rochman said.
In a letter to the CMS, the American Hospital Association said putting these measures in place have been difficult even for the most sophisticated hospitals. It's not an easy process to automate because the estimates need to be tailored to each patient.
"The regulation grossly underestimates the administrative burden of these requirements," the AHA said in a letter to the CMS dated March 4.
Making it even more confusing is that people with insurance could be considered uninsured in certain circumstances, according to Deborah Kantar Gardner, partner with law firm Ropes & Gray, who also is working on compliance with provider clients.
If insurance doesn't cover a particular benefit such as a cosmetic procedure, that patient would be considered uninsured in this circumstance and entitled to a good-faith estimate. At the same time, a patient who decides not to use their insurance benefits would also be entitled to an estimate, according to the American Medical Association.
"Even that determination about whether or not somebody has a benefit actually could be very difficult to figure out," Kantar Gardner said