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CMS Interim Final Rule Aims to Eliminate Surprise Billing

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In comments to CMS, ACP makes suggestions to further protect patients and physicians from the consequences of surprise billing

Sept. 17, 2021 (ACP) – The American College of Physicians supports new interim federal regulations that aim to crack down on the growing problem of “surprise billing.” In comments to federal officials, ACP emphasized what an important step these regulations are and offered further measures that health officials can take to even better protect both patients and physicians.

At issue are “surprise bills” that require patients to pay unexpected and often exorbitant fees. In some cases, the bills demand payment for services from an out-of-network physician or facility that a patient may never have approved. Surprise bills may also levy unexpected in-network service charges, especially in emergency situations, that can be a financial burden on patients and contribute to medical/consumer debt.

ACP has taken a firm stand on surprise bills. “ACP believes and supports increased transparency in all sectors of the health care system, and that action should be taken to increase protection for patients who face unexpected or surprise bills through no fault of their own,” wrote Dr. William Fox, chief of the ACP Medical Practice and Quality Committee, in an Aug. 24 letter to the Centers for Medicare and Medicaid Services.

The interim final rule issued by CMS bans:

  • Surprise billing for emergency services. Emergency services, regardless of where they are provided, must be treated on an in-network basis without requirements for prior authorization.
  • High out-of-network cost-sharing for emergency and nonemergency services. Patient cost-sharing, such as coinsurance or a deductible, cannot be higher than if such services were provided by an in-network doctor, and any coinsurance or deductible must be based on in-network rates.
  • Out-of-network charges for ancillary care, like an anesthesiologist or assistant surgeon, at an in-network facility in all circumstances.
  • Other out-of-network charges without advance notice. Physicians and clinicians and health care facilities must provide patients with a plain-language consumer notice explaining that patient consent is required to receive care on an out-of-network basis before a physician or clinician can bill at the higher out-of-network rate.

ACP supports the changes. “In emergency situations, there simply is not enough time for the patient to know which clinicians are in- or out-of-network,” said Brian Outland, ACP director of regulatory affairs. “In nonemergency situations at in-network facilities, without any prior notice, patients would assume that all of their care would be considered in-network. It is critical that a patient be given the knowledge up front that a clinician he/she will see is out-of-network so that the patient can make an informed choice before the care is rendered.”

ACP believes CMS can do more to protect patients and physicians. For one, ACP is urging officials to act to make sure health plans pay for services. “ACP encourages CMS to include in the Independent Dispute Resolution process described in future subregulatory guidance that health plans have an affirmative obligation to pay fairly and appropriately for services provided in- and out-of-network,” Outland said.

ACP also believes that regulators should do more to ensure “network adequacy” to make sure that insurer networks of physicians and clinicians are sufficient.

“How network adequacy and the fair payment of services for physicians may contribute to the increase in patients receiving out-of-network care should also be examined to ensure an appropriate number of available in-network physicians, especially in the emergency setting,” Fox wrote in the Aug. 24 letter. “Further consideration of proposals to ensure levels of network adequacy is needed.”

This interim final rule implements the first of several requirements passed with bipartisan support in Congress, according to Outland. “Comments are being solicited,” he said. “The regulations issued will take effect for health care clinicians, provider entities and facilities on Jan. 1, 2022. For group health plans, health insurance issuers and Federal Employees Health Benefits Program carriers, the provisions will take effect for plan, policy or contract years beginning on or after Jan. 1, 2022.”

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Back to the September 17, 2021 issue of ACP Advocate