On Aug 19th, the Final Rule of the No Surprises Act was released. Needless to say, this has been a long time coming; over the past year, we’ve covered the many twists and turns the NSA has taken since its initial stages, including edits made to confusing language and, earlier this year, a legal challenge that threatened the future of the bill.
Now, as this Final Rule finally sees a release, it seems many of these concerns have been addressed — and some concerns still linger. In this post, we’re going to go through what you need to know about the new Final Rule.
First, the aforementioned legal challenge must be addressed. To recap, a Texas judge invalidated a small part of the first draft of the rule back in February of this year. The portion related to arbiters and what they had to consider when resolving payment disputes.
To resolve this, the Final Rule released in August states that arbiters are required to consider the median in-network rate or “qualifying payment amount” in addition to the other information submitted by the parties involved, removing the earlier draft’s idea that arbiters were to presume that the median in-network rate was the appropriate payment. Upon weighing all of this information, arbiters are instructed to choose the amount that “best represents the value of the item or service under the dispute.”
Much like in earlier drafts of the NSA, the arbiters must then explain their payment determinations and the rationale behind them in a written decision submitted to the parties, HHS and the Labor Department.
Now that that’s been settled, we can carry on with another important aspect of this Final Rule: downcoding.
Downcoding refers to a practice in which a health plan modifies the service level billed by a provider to a lower one. For example, a provider may submit a claim describing that a high complexity service was rendered, but a health plan may disagree and reimburse at a lower rate consistent with a lower complexity service.
While downcoding is still legal per the Final Rule, the Rule attempts to make this process more transparent. Not only does the Final Rule define downcoding — a first for the agency — but under the terms of the Final Rule, if a qualifying payment amount is based on a downcoded service code or modifier, the health plan must provide a range of information alongside their initial payment explaining why that is the case.
This information must include a statement explicitly noting that the service was downcoded, an explanation as to why it was downcoded (including specific notations of which service codes or modifiers were changed), and the relevant qualifying payment amount had the service not been downcoded.
There’s plenty more to sort through with this Final Rule, which is why the U.S. Departments of Health and Human Services put out a handy Fact Sheet answering some of the major questions people may still have about the Final Rule.
While the Final Rule is now available for the public to read, there are still some issues at play with regard to its implementation. We will follow the news as it develops and keep you up-to-date with any changes.