No Surprises Act details yet to be determined, may lead to surprises

The No Surprises Act, which was enacted at the end of 2020 and takes effect on January 1, 2022, protects consumers from receiving unexpected medical bills. Surprise bills typically result from out-of-network ("OON") emergency care delivered by an OON facility or an OON provider at an in-network facility.  The new law also prevents OON providers at in-network facilities from balance billing patients for non-emergency care unless they get patient consent, although patients will still be required to pay the in-network cost-sharing amount.  

The centerpiece of the bill is the establishment of an independent dispute resolution ("IDR") process giving providers and insurers 30 days to agree to the price in dispute for the medical services.  If they don't settle, they are required to enter binding arbitration, with each side presenting their case and the arbitrator picking one of the two offers.   In addition to the IDR process,  the new law sets stiff penalties for violation of balance billing violations, requires a consumer complaints process and grants appeal rights to consumers whose plans do not cover surprise medical bills.   

The Federal regulators still have many details to work out before next year when the law takes effect. For example, Congress left it to the regulators to determine how to calculate qualified payment amounts, how to adjust them for inflation or set them for new entrants in a specific region or market. Also, the government is required to ensure that a sufficient number of IDR entities are certified to handle the arbitrations and provide them with guidance on how to address many factors in the proceedings. Other open issues include how certain deadlines in the law will be enforced if a party fails to meet such requirements.