Surprise Billing Rule Shouldn’t Levy New Burdens, AAFP Says

The Sept. 7 letter was sent to CMS Administrator Chiquita Brooks-LaSure and signed by Board Chair Gary LeRoy, M.D., of Dayton, Ohio. It was in response to the interim final rule “Requirements Related to Surprise Billing; Part I,” published July 13 in the Federal Register. The rule is part of implementation guidance for last year’s No Surprises Act, which goes into effect Jan. 1, 2022, and enshrines a number of patient protections for which the AAFP has advocated.  

In line with the Academy’s vigorous lobbying to achieve administrative simplification, the letter flagged the interim final rule’s treatment of alternative payment models and the notice-and-consent process as potential burdens to primary care practices.

The rule allows plans to disregard the impact of alternative payments, including bonuses and other incentive payments, in the calculation of the qualifying payment amount (in favor of using the underlying fee schedule rates, where available).

“Disregarding these additional payments could hinder the transition toward value-based care and disincentivize physician practices from moving into an alternative payment model,” the Academy cautioned. “While the No Surprises Act implemented several vital patient protections, moving to a value-based health care system is essential for reducing patients’ health care costs and improving patient outcomes. It is vital that these regulations do not create additional barriers to moving out of fee for service.”

The Academy also noted the rule’s potential for increased administrative complexity in the notice-and-consent process for patients to waive balance billing and cost-sharing protections in seeking out-of-network care. As outlined in the rule, physicians are required to provide patients with a “good faith estimate” of possible charges and encouraged to provide information to patients regarding cost-sharing, prior authorization and other potential prelimits to care management.

“CMS correctly notes that non-participating physicians and facilities may find it challenging to obtain relevant cost-sharing and prior authorization information since, by definition, they do not have a contract with the patients’ health plan,” the AAFP said. “While we agree that physician practices should be able to estimate the total charges for the services the practice expects to furnish, we urge CMS to refrain from requiring practices to also obtain information about cost-sharing and utilization management processes that is not readily available to them. This would significantly increase the burden of the notice and consent process and could lead to delays in needed care. We recommend CMS clarify that providing cost-sharing and utilization management information is not required.”

The Academy added that CMS should require that payments be made directly to the physician or facility providing out-of-network care if notice and consent are obtained. “This would reduce burdens placed on physicians and patients by taking patients out of the middle of the payment process,” the letter said.

The rule as written grants insurers the authority to determine whether notice and consent were provided in a timely manner and instructs them to reprocess the claim if they determine a deadline was not met. “This could result in additional administrative burdens for physicians, as well as unnecessary payment delays,” the Academy said in urging clarification.

CMS recently released separate guidance announcing that it would delay rulemaking and compliance for the Advanced Explanation of Benefits portion of the law — a move the Academy said was “the best course of action,” given the ongoing public health emergency. The letter added: “In developing subsequent regulations, the AAFP strongly recommends CMS work to minimize administrative requirements on primary care practices, including requirements related to providing a good faith estimate and the AEOB upon a patient’s request.”