The federal No Surprises Act formally went into effect Jan. 1, but CMS' decision to apply "enforcement discretion" throughout 2022 has compounded confusion and concerns over its rollout.
Well before the Jan. 1 start date, providers raised concerns about several elements of the No Surprises Act, including fears over enforcement and that the act's payer dispute resolution process was insurer-favored.
Discussions regarding the controversial arbitration process are still unfolding, but little progress has been made on enforcement beyond CMS' pledge to use discretion through 2022.
Five things to know as No Surprises Act rollout continues, according to CMS:
1. When CMS says it will use "enforcement discretion" for regulations of the No Surprises Act, it means that it will delay taking action for noncompliance. Enforcement discretion is typically used for specific aspects of regulation, CMS told Becker's. HHS said it would use enforcement discretion from Jan. 1 to Dec. 31 when it comes to situations of providing a good faith estimate to an uninsured individual. This is because it may take time for providers to create the necessary systems and processes.
2. HHS, the Labor Department, the Treasury Department and the Office of Personnel Management released a notice of proposed rulemaking in September 2021 called "Reporting Requirements Regarding Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement." The notice provides enforcement procedures of the Public Health Service Act, which include civil money penalties, for when agencies choose to refrain from using enforcement discretion.
3. While enforcement discretion still allows CMS to crack down on providers if the agency chooses, the CMS spokesperson told Becker's that CMS has not issued any warning letters or citations over provider noncompliance. Instead, the agency is focusing its efforts on providing hospitals with information and resources to drive compliance.
4. While litigation is ongoing regarding the independent dispute resolution process, CMS will be collecting data on its utilization. CMS, HHS, the Labor Department and the Treasury Department are working on a public website for parties to initiate the process, the spokesperson told Becker's. The agencies have already created a public website for the patient-provider dispute resolution process and are collecting related data.
5. The CMS spokesperson told Becker's that it is working with a variety of stakeholders across the healthcare industry on the surprise-billing rule rollout but did not specify whether the agency will continue to field feedback or concerns through 2022. The agency instead doubled down on the importance of surprise-billing protections and directed inquiries to its surprise-billing fact sheet.