Healthcare Association of New York State Issues Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, Oct. 23 -- Jeff Gold, senior vice president and special counsel for managed care and insurance at the Healthcare Association of New York State, Rensselaer, has issued a public comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement". The comment was written on Oct. 18, 2021, and posted on Oct. 19, 2021:

* * *

The Healthcare Association of New York State, on behalf of our member nonprofit and public hospitals, nursing homes, home health agencies and other healthcare providers, appreciates the opportunity to comment on the Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement proposed rule.

HANYS and our members have long been committed to protecting patients from surprise medical bills and strongly advocated for a comprehensive solution that truly keeps patients out of the middle of billing disputes, while including fair payment mechanisms that ensure adequate reimbursement for out-of-network services.

HANYS is proud to have played a key role in the successful passage and implementation of New York state's Out-of-Network Consumer Protection Law.

Ensuring appropriate and equitable enforcement of both New York's OON law and the federal No Surprises Act is crucial to realizing the patient protections envisioned by Congress.

HANYS appreciates that the departments are issuing technically complex regulatory guidance to meet the congressionally mandated NSA implementation deadline of Jan. 1, 2022, as demonstrated by the departments' decision to delay enforcement of the good faith estimates for insured patients and the advanced explanation of benefits requirements. However, the healthcare industry as a whole is unprepared to implement many aspects of the NSA in the allotted timeframes.

HANYS again requests the swift release of guidance on how providers should calculate good faith estimates and guidance on specific codes for providers and facilities to use when completing the standard notice for seeking consent from the patient for OON services.

HANYS also asks the departments to engage with all stakeholders to remove perceived inconsistencies and duplicative requirements between the NSA explanation of benefits provisions and the hospital price transparency final rule so that patients are not confused. Practical guidance on workflow processes, standardization and consistent exchange mechanisms will help avoid disparate approaches that may ultimately create more burden and confusion than value for patients, providers and health plans.

Though our member hospitals and health systems are making every effort to be ready for implementation, there are considerable challenges in meeting the Jan. 1, 2022, deadline.

Our members continue to deal with the financial impact of the COVID-19 pandemic. In addition, the pandemic has had a devastating impact on many healthcare personnel, exacerbating workforce shortages that existed long before COVID-19. The extraordinary workforce shortages that New York's hospitals currently face are diverting scarce resources to secure additional staff, expand capacity and procure necessary supplies to care for patients and keep staff safe. Hospitals in New York and around the country have been forced to rely on traveling clinicians to fill gaps in staffing. This has the potential to generate OON bills for consumers, as it is highly unlikely these temporary staff are in-network with the same plans as a hospital.

For these reasons and others described below, we strongly urge the departments to defer enforcement of the NSA until all implementing regulations are finalized and stakeholders have had sufficient opportunity to implement, evaluate and revise NSA-related processes and documents, particularly for states like New York that have their own law.

Enforcement responsibilities

The proposed rule creates two parallel enforcement processes. While the departments make clear that states are the primary enforcers of Public Health Services Act provisions, including NSA requirements, they also outline scenarios in which CMS becomes the primary enforcer for both plans and providers. Without clear guidance around which entity (the state or CMS) will act as the primary enforcer of NSA requirements, plans and providers are unable to dedicate appropriate resources to properly execute surprise-billing requirements because they will not know which set of rules to follow and when. HANYS requests that the departments establish appropriate oversight of plans to ensure they communicate accurate information to providers in a uniform and timely manner. Additionally, we request the departments provide clear guidance on how state and federal enforcement entities should work together to protect patients from surprise medical bills.

HANYS is also concerned that state and federal oversight agencies will not be fully prepared to enforce NSA requirements by Jan. 1, 2022. Due to the COVID-19 pandemic and its challenges, guaranteeing appropriate, equitable oversight may require the departments to delay enforcement activities and conduct workgroups with government, plans and provider stakeholders to ensure understanding of enforcement processes. Therefore, we urge the departments to ensure that state and federal oversight agencies have the resources necessary to apply equal enforcement of reported violations for both plans and providers. Furthermore, we ask the departments to complete the rulemaking process for all aspects of the NSA and provide education and technical assistance to stakeholders, including state agencies, to ensure uniform implementation and execution of NSA provisions.

Investigations of violations

Under the proposed rule, CMS may undertake an investigation based on any information that indicates a provider or facility is failing to comply with NSA requirements. Sources of that information can include medical bills, claims, notice and consent forms, disclosures and air ambulance services data. In addition, the departments propose giving CMS authority to conduct random or targeted investigations of providers and facilities proactively, without submitted complaints or state action. HANYS supports investigations of valid complaints, but has concerns regarding the administrative burden and cost posed by random investigations. HANYS asks the departments not to implement this provision.

The departments propose to change 45 CFR 150.307(b) to modify the timeframe in which entities have to respond to a CMS investigation of an alleged violation of the NSA. The proposed change would remove the existing 30-day timeframe and replace it with a 14-day timeframe. The proposed rule does not clarify whether this would be 14 calendar days or 14 business days; regardless, HANYS is extremely concerned that 14 days is an insufficient amount of time for providers or facilities to respond to a notice from CMS. Providers and facilities need time to understand the allegation of noncompliance and to gather sufficient supporting document. HANYS urges CMS to maintain the 30-day timeframe for responding to a CMS investigation of an alleged violation of the NSA.

Qualifying payment amount

HANYS supports the NSA approach of establishing a methodology for determining patient cost sharing that does not rely on a final determination between the plan and the provider or facility. HANYS also supports counting this cost sharing toward any in-network deductibles or out-of-pocket maximums a patient may have.

The NSA created the QPA for two purposes: to calculate patient cost sharing and serve as one of the factors for consideration by the arbiter in the independent dispute resolution process. The NSA defines the QPA as the plan's or issuer's median in-network rate for 2019 trended forward.

As discussed in our comment letter on the Requirements Related to Surprise Billing; Part I, HANYS is concerned that stakeholders cannot fully assess the methodology for determining the QPA without understanding the extent to which it will be used. Ultimately, the departments have attempted to drive the QPA as low as possible in order to lower patient cost sharing.

HANYS implores the departments to ensure adequate enforcement over plans' calculation of the QPA. HANYS is extremely worried that the departments' existing oversight mechanisms are insufficient to monitor plan and issuer behavior. Current provider complaints and concerns regarding ERISA-regulated plans and issuers disappear into a vacuum with no response or resolution from the federal government. Given the implications for patient out-of-pocket and provider payments, the health plan's methodology for calculating the QPA should be publicly available and transparent to all stakeholders.

Agent and broker fees

The departments propose adding a requirement that health insurance issuers offering individual health insurance coverage or short-term limited duration plans disclose to policyholders and annually report to HHS direct and indirect compensation provided by the issuer to an agent or broker associated with enrolling individuals in such coverage. HANYS supports the requirement to disclose both direct and indirect compensation provided to agents and brokers who enroll individuals in individual health insurance and STLD plans. However, simply providing compensation tables to consumers without explaining how agent/broker compensation affects the marketing of insurance products by insurers and agents/brokers is not useful.

HANYS recommends that the agent/broker compensation information include direct and indirect compensation for all insurance products sold by the agent/brokers, not just what the agent/broker will be paid for enrolling an individual in a specific insurance product. This information should be provided to the consumer prior to discussing insurance options in order to assist the individual with making an informed decision.

In addition, HANYS asks that HHS again restrict the sale of STLD health plans to no more than three months and rescind the prior administration's regulation that permits the sale of STLD health plans for up to 364 days.

HANYS appreciates the opportunity to provide feedback. If you have questions regarding our comments, please contact me at 518.431.7730 or [email protected], or Victoria Aufiero, senior director, insurance, managed care and behavioral health, at 518.431.7889 or [email protected].

Sincerely,

Jeff Gold, Esq.

Senior Vice President and Special Counsel, Managed Care and Insurance

* * *

The proposed rule can be viewed at: https://www.regulations.gov/document/CMS-2021-0147-0001

TARGETED NEWS SERVICE (founded 2004) features non-partisan 'edited journalism' news briefs and information for news organizations, public policy groups and individuals; as well as 'gathered' public policy information, including news releases, reports, speeches. For more information contact MYRON STRUCK, editor, [email protected], Springfield, Virginia; 703/304-1897; https://targetednews.com