No Surprises (?) in the No Surprises Act

Earlier this year, I had my yearly physical. (All is well, thank you for asking.) My physical took place in January. After my visit, I paid my copay and went about my day assuming that was the end.

Five months later, in May, I received a bill for services rendered “by my provider.” The amount was not astronomically high by any stretch of the imagination; if memory serves me correctly, it was safely under $200. (A note here, however, that by some estimates, 9% of Americans owe at least $250 in medical debt; so “not astronomically high” is very much a subjective statement.) Given that I had not seen my provider in many months, and the bill I received was opaque (at best) in outlining the services I owed payment for, I experienced confusion as to why I needed to pay more dollars…to anyone.

After a few calls to my provider (from whom the bill came, but from whom I received no explanation as to why I owed more money), and one painfully unhelpful call to my insurance provider (who kept referring me to my Explanation of Benefits, which proved equally as unhelpful as my original bill), I decided I had other important things to attend to; so I stopped calling, stopped trying to dissect my new bill, paid what I was told I owed (and which I was fortunate enough to be able to afford), and moved on. (Or as much as I could have “moved on” given that I am complaining about it right now, to all of you.)

With some distance between myself and the bill, I have been able to revisit it to see what, exactly, I missed. Or, more specifically, identify what was done to me that my insurance plan decided it didn’t want to pay for, but that no one told me I would be eating the costs for. As it turns out, my insurance paid for the services I received directly from my provider. The extra $200? Fees for an out-of-network lab my provider uses for bloodwork.

THE NO SURPRISES ACT

While I was surprised to receive this bill, to call it a Surprise Bill is inappropriate, inaccurate, and disrespectful to the many individuals who do have to figure out how to deal with a Surprise Bill. We have known about the pain of surprise medical bills for some time, and Congress has repeatedly been stumped in their decision-making process on how to handle them. At the same time that we do, in fact, want to protect individuals from crippling medical debt, we also feel the need to protect health plans from having to dole out any “excess” money to pay for care those exact same individuals need to receive. And we look to strike this balance in spite of insurance plans reporting significant income growth.

Surprise Bills are the result of a patient receiving a service provided by a facility or provider who is not in-network (or not contracted with) the patient’s insurance plan. When a patient receives those services, insurance refuses to pay (as they are not contractually obligated to do so), so the provider requires the patient to make them financially whole (by billing the patient the balance between the cost of providing the service and what the insurance plan paid out; an act called “balanced billing”). I am unsure about you, but the depths of my wallet do not come close to matching that of the coffers of insurance plans. So I wonder: why is this the patient’s responsibility?

According to Title I of Division BB of the Consolidated Appropriations Act, 2021 (aka, the No Surprises Act [NSA]), in some cases, it no longer is the patient’s responsibility. In short, the NSA does a handful of things for individuals in (i) group health plans; (ii) individual or group health insurance coverage; and (iii) covered by Federal Employees Health Benefit Plans:

1. Prohibits Surprise Bills by not allowing providers to bill for emergency (and some non-emergency) services rendered by providers and facilities outside of the patient’s insurance plan’s provider network;
2. Requires providers to make apparent to patients their rights and protections against balanced billing;
3. Offers a mechanism for patients to challenge a bill if the total is more than $400 than the good faith estimate calculated by the provider in advance of receiving a service (with providers required to provide such a good faith estimate);
4. Ensures a patient can receive at least 90 days of continued care should their insurance plan’s provider network change in the midst of receiving some services; and
5. Mandates that insurance plans keep updated (at least every 90 days) their provider directories.

In reading about the NSA (as well as the actual legislation), my first thought was, “Well, this all sounds logical.” And I continue to believe it all is. At the same time, however, the implementation of this is unnecessarily burdensome.

MORE INFORMATION = MORE AUTONOMY…MAYBE? 

One of the main goals of the NSA is to make more transparent, to patients, the cost of doing business for healthcare providers and insurance plans. The intent is to create a more informed population of patients who are better able to consent into receiving treatment based, in part, on the cost of services.  

Great.

But let’s revisit my bill from earlier. The bill I received was to cover the preventative bloodwork my provider decided was clinically appropriate for me, but which was rendered by an auxiliary partner my provider uses, my insurance plan does not contract with, and over which I have no control. Under the NSA, and pretending the NSA applies to this specific situation (which it does not), I would have a right to know from my provider that the preventive bloodwork they want me to receive would cost me extra dollars to the tune of some “good faith estimate,” and do I still want it done? If I say, “No,” I am likely then out the preventive bloodwork.

As the patient, I cannot dictate who my provider contracts with for services they are unable to offer in-house. Nor should it be my responsibility. In being actually patient-centered, both providers and insurance plans should be establishing networks of providers that offer patients the least likelihood of disruption of services: providers should be directing insurance plans to those auxiliary services they partner with, and insurance plans should be tracking patients across the continuum of care to establish a network offering a comprehensive suite of services. In the instance of receiving bloodwork for a primary care physical, I could, in theory, take the time to find a new in-network provider that either offers the service themselves, or contracts with an entity in-network with my insurance plan.

The NSA more directly applies to emergency services. When experiencing a medical emergency, a couple of things are rare: (i) patients having the physical or mental capability to negotiate who renders services based on whether those providers are in-network; and/or (ii) having the time to understand any potential out-of-network costs associated with services and consenting to those charges. How likely are patients, receiving services to which the NSA applies, going to be able to exercise their new rights and responsibilities, really?

I repeat my statement from earlier: I believe in the intent of the NSA and agree with the tenets of the Act’s implementation. However, rates of proficient health literacy among American adults is dangerously low (estimated at 12%). With the guidance from the federal government that the transparency baked into the NSA need be in opaquely-described “clear and understandable language,” it is not a far stretch of the imagination to conclude that we are still setting ourselves up for a true lack of understanding by patients on what they are consenting to.

NO SURPRISE WITH THE NO SURPRISES ACT

According to Brookings in a 2021 blog post (notably before the January 1, 2022 implementation date of the NSA), the “root market failure” of our healthcare infrastructure that results in surprise billing is, “that patients lack meaningful choice of provider for certain services.”

I challenge this in that I believe the “root market failure” is that patients lack meaningful choice and control in ensuring they have access to adequate provider networks to have a choice for any services. We all know we have not flawlessly implemented our healthcare system based on market principles. One distinct way in which we created these flaws is by removing the market power of the patient. The consumer’s inability to directly influence how goods and services are provided is non-compliant with the ideologies of market forces. If your consumer does not sway how you operate, then how are you responding to supply and demand?

The implementation of the NSA will, yes, likely benefit people. And I think it is a necessary step along the way to fixing our flawed system. But I do not want us to assume that this fixes the problem. To the surprise of no one, these are still issues to grapple with as a result of the NSA, such as:

1. Providers can ask patients to waive their protection against balanced billing: Many patients already struggle with understanding and making well-informed decisions about their health. If a provider is offering a service based on their clinical judgment, but that it comes at an extra cost to you (and financial benefit to them), what percent of patients will actually refuse the service?
2. Insurance plans and providers must use arbitration to settle on payment for what would have been a balanced bill amount: I’m not mad about this. But this assumes an agreement between the provider and plan is already in place, which means any (lack of) negotiation between the two has likely happened. If we really are building a market-based healthcare system, I would like to think providers and plans are in constant negotiation to ensure patients get the services they need by providers they choose at a cost they can afford. (But I know better.)
3. Providers and plans, together, are responsible for providing “good faith estimates”: When a patient is faced with receiving out-of-network services, the out-of-network provider (or facility) is responsible for providing to the patient’s health plan a “good faith estimate” of what the totality of services and equipment will cost. Should patients consent and receive the services, they are able to fight a bill that is $400 over the estimate. But what if the bill is within that $400 range, yet the final list of services and equipment include things the patient did not feel was necessary, or are unrealistic (as we know the amount charged for some services in healthcare are disrespectfully high and based on, quite frankly, nothing)? And, as a patient with everything else in their lives to attend to, who has time to fight the bureaucracy involved in addressing the bill? 

I will close by saying that I do not intend to blame providers and plans for where we are, entirely (despite it maybe sounds as if I am doing just that). After all, how they operate is, in part, influenced by how the officials we elect into office allow them to do so. (We also know they lobby those same officials for approval to behave in certain ways.) But I do think they have a more significant role in addressing the flaws in the system than they are playing. While the NSA is an attempt to reign in some abusive practices and, in some ways, to help both providers and plans act more accordingly with the market principles upon which we think we based our healthcare system, they still have wide latitude in how they behave. Patients will have more information at their disposal as a result of the NSA, which they can use to help sway the behavior of their plans and providers. So let’s hope we’re all paying attention.