Based on AHLA’s annual Health Law Connections article, this special series brings together thought leaders from across the health law field to discuss the top ten issues of 2022. In the first episode, Bob Paskowski, Principal, PYA, speaks with Benjamin Fee, Attorney, Hall Render, about the implementation and enforcement of the hospital price transparency requirements one year after they were enacted by CMS, as well as the requirements related to the No Surprises Act (NSA), which went into effect on January 1. They discuss the provider industry’s readiness to implement the NSA’s provisions and what to expect from the industry as more provisions roll out in 2022. Sponsored by PYA.
Watch the conversation here.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
A H L a is pleased to present the special series, highlighting the top 10 health law issues of 2022, where we bring together thought leaders from across the health law field to discuss the major trends and developments of the year support for a H a . And this series is provided by PPY , which helps clients find value in the complex challenges related to mergers and acquisitions, clinical integrations, regulatory compliance, business value, fair market value assessments, and tax and assurance for more information, visit pya , pc.com .Speaker 2:
Well, hello everybody. And welcome to the 2022 a H L a top 10 issues in health law podcast series. This is Bob pascals and I'm a , a consulting principal with pya . And today we're gonna be discussing one of those topics, frankly, one of my favorites around surprise billing and hospital price transparency. I would like to introduce Ben fee from hall render who coauthored the article back in December. And we're here to talk about these topics specifically through the lens of both patient and providers. Good morning, Ben.Speaker 3:
Uh , good morning. Hi Bob. Thanks. Uh, thanks for, for being part of this conversation, looking forward to our, our discussion today.Speaker 2:
Great. Well , let's break these two topics down and let's perhaps start with the , the more simpler one, which is the hospital price transparency topic first, which did take effect that requirement took effect last January of 2021. So we've got a year runway on this, this particular , uh, this particular topic. So Ben, how would you characterize year one, as we look back at, how did it come out from an enforcement perspective? How the implementation come out?Speaker 3:
Yeah, it's a , it is a good place to start and , and certainly it's probably the simpler one , uh, only because we, we have had it in place for over a year now. Uh, if , if we were recording this , uh, you know, 18 months ago, I don't think anybody would, would describe the, the hospital price transparency as a, a simple , uh, requirement, certainly to, to try to comply with. Uh , so, so as just a reminder, the , the hospital price transparency, we really we're talking about this , the rule that requires , uh , licensed hospitals, most licensed hospitals within the United States to , uh, post prices for the items and services they provide on their, on , on their website in a couple of different ways. And, you know, most importantly , uh , or most notably that includes payer specific negotiated rates , uh , which certainly was the most controversial probably aspect of that rule. Uh , as you mentioned, it's been in place since January 1st , uh , 2021 , uh , so over a year now. And , and so now we're really looking at , uh , what is the current implementation , uh , status and , and what is the enforcement environment like on, on implementation? It kinda depends on what resource certainly you're looking at. There have been some pretty high profile publications, Bob, as , as you know, and , and you've certainly seen , uh, that have come out that , that show industrywide compliance. It , it may be somewhere around , uh , 70 to 90% , uh , compliance, meaning that there are , uh, 10 to , to 30% of hospitals that have made no effort to comply, at least according to the, to some of those , uh , publications. Uh, there've also been some high profile , uh, publications and , and news outlets about hospital compliance rates. I think the most recent was from the wall street journal, which was actually just published , uh , here in the beginning of January, 2022 . So you can again , uh , maybe take issue with some of the findings in those reports in terms of whether a hospital's actually compliant or not, but, but it's undeniable that the are, there are some hospitals within the United States that , um, have not made , uh , any attempt to post this information. Uh, certainly , uh , and then even when you look at the hospitals that have, if you're gonna see a wide variety or variation in terms of where compliance is at, in terms of , uh , maybe, you know, the , the gold standard best practice is , is , uh , versus hospitals that have just at least made some effort, but maybe it's still difficult to navigate their , uh , publicly available information. And, you know, regardless of where you think industry compliance is at it , it's undeniable too . I think that that CMS and HHS are aware of those same reports , uh, that I mentioned. And , and we see that reflected in the fact that the penalty for non-compliance has increased. Um, recently it went from a , a fairly low , um, penalty of, of a maximum $300 a day penalty that , uh , uh , per hospital , uh , compared to other , uh , you know, non-compliance issues within he it's a very low penalty. So they they've increased that recently to a, a per bed penalty of $10. And so for, for larger hospitals , uh , although there's a cap on it, the penalty can actually go up to , uh , you know, $5,500 , um, per day. So, so substantial increase over the $300 a day penalty. Um, you know, that's the penalties in terms of enforcement and auditing. We actually have not seen any publicly posted , uh , financial penalties at this stage. Um , a year later, what we do know is that audits , uh , have certainly started and, and continue to, to , to , to go on , uh, the latest numbers. I think I've seen CMS , uh , quoted as, as providing, as they've sent out somewhere in the neighborhood of 400 warning letters to hospitals about potential non-compliance with the price transparency requirements , um, and maybe about a hundred of those included a formal , uh , corrective action plan by the hospital. So I think what we can expect, or certainly expect in 2022 is that those audits are gonna continue. That CMS is probably gonna even ramp up , uh, on the audit side. It's , it's actually a really, I , I view it as a very easy , uh , regular for CMS to audit on because they, they just have to go to a hospital's website. They don't have to come on site . Uh , they don't have to request medical records. It's a fairly , uh , simple audit process for CMS. So I think we're gonna see , uh , audits continue , uh , even increase. And I think some sometime here in 2022, we're gonna start seeing , uh, CMS financially penalized hospitals for non compliance .Speaker 2:
Great, thanks Ben, for that, that summary of, of hospital price transparency. So now let's shift gears and talk a little about surprise billing. Um, lot to unpack here, lots, lots of pieces to this. So I want to start really with the no surprises act. Um, if I use NSA that , that that's the acronym for that. And some of those provisions did take effect actually just a few days ago , uh , January 1st, 2022, but as we try to compartmentalize all of those different provisions, you know, how, how is the best way to do that? Um, I , I think of a , it certainly through, you know, what providers are affected , uh, which services are, are affected and what things are required as of January 1st, 2022 , um, that should already be implemented. So maybe if you could compartmentalize it through those kind of those different lenses, that would be helpful for the audience <affirmative>Speaker 3:
Yeah. AB absolutely. And , and you're right. The no surprises act , uh , there is a lot to unpack in that legislation and it , it really does help, at least for me when I'm working through these issues, when I'm , uh , talking to organizations about this , um , Bob , you and I discussed this , uh , quite a bit in preparation for recording today. Um, it , it helps me to start with categorizing it first , uh, and , and kind of breaking up the no surprises act into really what I view as two different rules , uh , or laws. The , the first is the , the surprise billing protections, the balance billing protections for patients. And that was really , uh , kind of what we think about when we think about no surprises act and , and what, what we think Congress', I think focus really was. And on this issue that had , has , uh , we've been looking for a federal solution for a few years now is on those surprise billing productions. And so that's kind of the , uh , bucket number one. And then in bucket number two , um , is really, I think , another , uh , price transparency , uh , rule that, that has little to do with surprise billing , uh , and that's this requirement to provide a good faith estimate of expected charges , uh , which, which we'll talk about in a little bit more detail, but I think it's, it's helpful to start by kind of breaking it up into those two larger categories, because when we think about a , as you said, who it applies to when it applies, what services does it applies to? It's really gonna depend on whether we're talking about surprise bail protections or whether we're talking about the , the requirement to provide a good day Testament . Um , and , and before we can kind of talk about, you know, which one applies in which , uh , situation, but, but you're right. Uh , some of it was effective January 1st, 2022. So , uh , it's effective now. And , and so it's just at a high level , uh , I think, think about the, the areas that are effective now, so, which are probably most important to, to every buddy listening to this. Um , you start with knowing that those, those patient balanced billing protections , uh, those are in place. Those are in place as of January 1st, and those are fully effective at this point. Uh, the second is again, the , the price transparency part of this, the requirement to provide a good faith estimate. Uh, those are in place right now, as well, at least to extent that you're required to provide a good faith estimate to , uh , individuals who are uninsured or self pay . Um, and then the third area that's , uh, in place as of January 1st is there's certain , uh , patient notification , uh, requirements. And, and that includes providing , uh , patients notification of their , uh , protections under the surprise billing , uh , law , uh , and then the right to receive or request a good faith estimate. And , and that includes things like , uh , providing it , uh, to the patient directly and , and also posting that information to , uh, the, the facility or organization's website. And then , uh , all also posting it in certain locations within a , a patient care setting. So, so from , um , what's in place right now, it's those three things, the patient , uh , balance billing protections are in place. Uh, the requirement that to provide a good faith estimate to uninsured individuals is in place. And then the certain post , uh , patient notification rights , uh, are also in place. So , uh, certainly if an organization is, is starting now to think about what they need to do , uh , start with those three areas. Um, and then you mentioned, you know, how do we then kind of break this down to what , what types of organizations does it apply to when does it apply? Um , I think it's helpful to, to again, and talk about the surprise bail or balance billing protections, and then talk about the good faith estimate requirement , uh , and , and kind of seeing which applies and what circumstances. And , uh, I start with the balance billing protections , uh , which really provide , um , provide those protections in a couple different situations. And that's when , uh , an individual receives emergency services from an out of network , uh , provider. Um, and that really applies in the , the , uh , facility setting and including hospitals, most notably. So , uh , anytime an individual receives emergency services from an out of network facility, these protections apply, they also apply to non-emergency services when those services are provided by an out of network , a provider at an in-network facility. Uh, so a slightly different circumstances when those supply in that setting , uh , and then air ambulance services , um, uh , as well. So when we kind of discuss that, you think about what types of providers we're really in the surprise billing protections. Again, it's, it's both provider individual providers and facilities , um , but whether it applies kind of depends on the services being received and , and where they're being received. Um, and then finally from a patient's perspective, it's, these are protections , uh , kind of by definition for individuals who have health insurance coverage , uh, through usually a non-government payer. So really anybody covered under , um , employer sponsored or self-insured health plan , uh , or other health insurance product , uh , these protections will be, or are in place. And, and so then when you think about the good faith estimate requirement , uh, this is the requirement to provide , uh , a good faith estimate of expected charges for , uh , scheduled items or services. And so right away, you see there different because the good faith estimate requirement , uh , applies just to scheduled services, which makes sense. You're not gonna be able to provide a good faith estimate in advance , uh , of an emergency service. Uh , second, it it's much broader in its application as to, to practice locations or, or types of providers that it applies to. It actually applies is not only to the hospital facility setting, but really to almost any , uh , patient care location or provider , uh , including independent or, or freestanding physician practice locations , uh, those locations also based on the way that , that , uh , the departments are define certain terms are required to provide these good faith estimates. Um, the other difference though, certainly in surprise billing and good faith estimate requirement is from the patient's perspective, as you mentioned , uh , for now , uh , the requirements provide a good faith estimate only applies to uninsured patients or, or self pay pay patients . And so , uh , a completely different population , uh , of patients than, than the surprise billing production supply to . So, you know, just from a high level, I think, again, you kind of have to decide which, which of these two areas are you talking about? And then you can start to break down. When does it apply? Where does it apply? What patients does it apply to,Speaker 2:
Right. And for the, the people listening to this , um, this podcast, as well as, you know, as we consult with our clients, it's just good to kind of sketch that out, right. I mean, all those different pieces , uh , and depends on where you're at , um , what kind of facility you are , um, if you're in or outta network, what kind of patient is really to kind of have a good visual of, okay, these are the pieces I need to really start to put into place here, you know, immediately. Yeah,Speaker 3:
Absolutely. I don't. Um , I , I always have those types of resource , uh , in front of me when I talk about these, I've got, I've got a lot of those resources in front of me right now , uh, as we're talking , uh , and anytime I work through one of these issues , um, I'm gonna start by just sketching it out and , and kind of breaking it down and thinking, okay, what specifically are we talking about? Which area are we even in , uh, to just, again , the no surprises act is such a broad piece of legislation and, and it's going through the rulemaking process. And , and so it can be kind of overwhelming if you just start with the question of , uh , tell me, what do we need to do to comply with the no surprises act that that's a difficult one to answer , uh , succinctly certainly.Speaker 2:
Right . And , and we talked a little bit too about where we've got least clients , uh , prospects that are all over the, the , the space right now, as far as where do I stand with this? Some, you know, as late as last year that started having questions about this, as well as more advanced , uh , notice. So I guess also just wanted , maybe get a feel from you on where do we think the providers specifically are on this topic , uh , from a readiness perspective? Um, certainly I would think that the government sort of like price transparency will kind of catch up to the enforcement piece of this, but again, I think everybody's still kind of, you know, maneuvering these new waters to speak. Um , so just curious where you think a lot of , um, you know, your clients or other providers are in as far as the readiness piece.Speaker 3:
Yeah. Just , just like , um, you've experienced , uh , I , I think we, we see different different levels of readiness, if you will, kind of , uh , across the , uh , certainly from organizations that , uh , upon the passage of the no surprises act back in at the end of 2020 , uh , already started to think about , uh , what would be required in terms of compliance. Certainly at that point, it was, it was hard to, I think , uh , imagine certainly I didn't expect at least , uh, the level of, of, of , uh , time and effort. It was going to take , uh, based on how the rule making has , has played out. But we have clients that were thinking about it , uh , very early in 2021 and start starting to get ready. And , uh , and certainly, I , I know that there are organizations out there that are , um, probably now just starting to think about what they need to do, and it it's very understandable. It's been a , a compressed timeline , uh , for rule making , especially given , uh , just how substantial of an impact this has on , uh , provider operations in some ways. And, and , and then of course , uh , hospitals and providers are, are continuing to respond to the, the ongoing public health emergency. So , uh , resources and attentions have been focused elsewhere. So it's really a across a , a spectrum in terms of readiness. And, and at this point though, certainly I would, I would recommend anybody who has not started to think about it or put it , uh , put , uh , policies or, or procedures in place that they need to, to , to begin immediately.Speaker 2:
Right. Thanks Ben. So , so now that we've kind of started with this implementation of certain provisions, there's still a lot of uncertainties when it comes to the , the NSA, and there are still a lot of provisions that will be, have future rule making on them throughout this year. But so I'm gonna ask you Ben a little bit to, you know, get out your crystal ball and , and kind of think of what should we expect from the industry this year. Um, as far as, you know, more these provisions kind of rolling out and what impact that may have , um , in 2022 .Speaker 3:
Yeah, absolutely. You know, despite the fact that as we discussed there , there's a lot of this that's, that's effective now. Um, there is still quite a bit , uh, of changes to come, I think, and, and we can expect , uh , some substantial, either revisions or additional rule making , uh , in 20, 22 we're we're by no means. Uh, do we know right now , uh , how all of these rules are, are ultimately going to be finalized? I mean, maybe starting with the easiest one. Um, I mentioned that the requirements provide the good faith estimate , uh , applies to uninsured or self pay patients right now, but the , uh , the legislation itself actually requires a good faith estimate to be provided for patients who have insurance as well. Uh, the process is a little bit different with that good faith estimate, actually going to the, the insurance or , or plan that, that covers the individual rather than to individual directly. Um, but that's currently not , uh, HHS is technically using enforcement discretion on that piece. And so , uh , there's not an obligation to comply with that , uh , right now. And , and HHS has said that they're going to use that enforcement discretion pending additional rule making . So we certainly can expect to see a rule on the requirement to provide a good faith. That's the met to individuals with insurance , uh , sometime in 2022, I think I've heard , um, some, some are estimated that might come in about , uh , June or July of 2022. It could be later, but sometime in 2022, we should expect to see that rule so we know that's coming. Um, and the other thing that is, I think, important to keep in mind with all this is the two significant rule making , um , that we've seen so far. We're both, we're both published as interim final rules with, with requests for comments. So that's not the typical full notice and comment rule making that that many of us are used to. And there were some reasons that that HHS and other departments felt it was necessary to, to use this process , uh , in this situation. But what I think that means is that even though these rules are final and they're effective, they did solicit comments and they have received thousands of comments from the industry , um, on the two rules that they published, one in July and one in October. And so I , I think we should reasonably expect that there will be some modifications to that final rule in response to the comments. I , I do think the departments , uh , are going to certainly they're gonna review the comments. And , and I do think that they will actually , uh , revise their final rules in response to those comments. Um , you know , the , the comment period for the second rule just closed here in, in December , uh , 2021. So , uh , it could be a few months before we see anything , uh, in terms of revisions, but again, I'd expect some, some changes , uh, in 2022, even to the rules that we do have. Um, and then in the final piece is not from the rule making perspective , but the other area where we're gonna keep an eye on is there, there is at least one legal challenge brought by the American hospital association, American medical association, and a few others , uh , challenging, a fairly narrow , uh , but important aspect of the rule making process that, that really is focused on , um, the independent dispute resolution process and the , and the , that that works to figure out what a payer has to pay to an outof network , uh , provider and the , the rules without getting into all the details, created a presumption in , in favor of what we call the qualifying payment amount . And I think there has been , uh , substantial, almost universal , uh, response from the industry objecting to that approach. And , and we've seen that now in , in a legal challenge. And so we will see , uh , over the next few months again , uh, how that legal challenge has progresses and, and whether that, that , um , causes the agent or the departments to have to modify the rules . Uh , so that's certainly another thing that we're gonna keep our eyes on over the next , uh , few months and , and could have a substantial impact , uh , on some of this .Speaker 2:
Yeah , I , I found it interesting too , that how the industry is starting to react already to some of this that , that has just literally taken effect now. And as these, these kind of , um , topics roll out , um, businesses are, are reacting to it. Um, so it , it'd just be interesting to kind of watch how, you know, the reaction as , as these future rules come out , um, how much resistance will get from some of the Associa you mentioned , um , as this all kind of settles down when the final act is all, you know, fully implemented. So just curious, what, what do you think there that, do we expect more interference from, you know, industry from certain associations? Is this again, some more these rules start to take effect?Speaker 3:
Yeah. I mean, it's an evolving area when we talk about price transparency, and when we talk about surprise billing protections, and, and certainly when we talk about price transparency as just focused on kind of the hospital side today, but of course there's, there's , uh , corresponding obligations that are , that are coming into effect on the plan side , uh , in certain other areas where the federal government has really increased their efforts to, to make prices transparent to the public. And, and we're going to, I , I think we can always expect that there's going to be some, there's going to challenges and pushback from the industry , uh , on some of these, but , um , certainly over the last couple years, it seems like there is bipartisan support , uh, in, in DC for, for many of these efforts. And so far the federal government actions have survived legal challenges. And so we're , we're gonna continue to see industry pushback and , and , and certainly some of the industry is embracing some of this as well. Um, but you're right. I mean, it , it could look quite a bit different here , uh, in two or three years in terms of just what the , the rules require of, of everybody , uh, including on the provider side and certainly on the plan side. Well , um, what, what implementation looks like, and then what impact that has on, on , on the industry in terms of , uh , business strategy and financial decisions that organizations are making , um, as more of this information becomes available.Speaker 2:
Yeah. I , I have a feeling that we may be having this year , uh , those topic in future series maybe next year in next, the following year two , Ben. So again, just Ben, I appreciate your time today giving some really good insight into, you know, hospital price, transparency and surprise billing. Uh , this is , um , again, very interesting topic to, to discuss this afternoon and, and to our audience. Uh, we hope you enjoy the rest of the podcast series. Thank you.Speaker 3:
Thank you.Speaker 1:
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