The No Surprises Act is receiving push back—here's why

The No Surprises Act, which was enacted at the start of 2022 to protect patients from surprise bills, has already stirred up controversy—and litigation.

Daniel Haller, an acute-care surgeon who served on the front lines during New York City’s COVID crisis is taking the federal government to court over the act. He claims the legislation is unconstitutional.^[]

While the No Surprises Act is intended to protect patients, Haller isn’t the only doctor to criticize its impact on providers. To better understand how the No Surprises Act affects physicians, MDLinx interviewed an emergency care doctor.

Overview of No Surprises Act

What is the No Surprises Act, and how does it work?

According to the Centers for Medicare and Medicaid services, the No Surprises Act serves patients by legally protecting them from unexpected bills after receiving “emergency care, non-emergency care from out-of-network providers at in-network facilities, and air ambulance services from out-of-network providers.”^[] The legislation was in effect as of January 1, 2022.

The same applies to non-emergency services provided by out-of-network doctors in in-network facilities. The exception to this is if doctors provide appropriate notice-and-consent forms to patients.

Providers are also responsible for publicly disclosing patient protections against balance billing, as well as working alongside plans, insurers, and facilities to implement practices that clarify provider directory information for patients.

Patients have additional protections that enable continuity of care in the event of a change in their provider’s network status under certain circumstances, among other safeguarding measures.

While patients may benefit from the No Surprises Act, some doctors are quick to criticize it—and, in Haller’s case, pursue legal action.

Weighing perspectives

Haller’s lawsuit is based on his belief that the No Surprises Act bars him from billing patients directly for any “balance of the fair value” of his services, which is his constitutional right.

To investigate this perspective, MDLinx reached out to Ryan Marino, MD, Assistant Professor at Case Western Reserve University School of Medicine, for his opinion on the No Surprises Act.

But when asked how the legislation affects his practice as an emergency care doctor, Marino mentioned its negative impacts on payment and hospital reimbursement. He felt lawmakers could more effectively protect patients through other means.

“If ethics and equity were the goals that legislators were going for, then they should better regulate private insurers and the large corporations that dominate the healthcare industry in this country,” Marino noted.

“If they believe that CMS should be setting the standard for billing and reimbursement," he added, "then maybe what they really want is a Medicare-for-all type of system, with the option for people to pay for additional services as they wish (or purchase private insurance with different coverage).”

Establish new protocols

Until Marino or Haller see the legislative change they desire, doctors who are feeling the weight of the No Surprises Act can remember three guidelines for successfully transitioning their practice, from article an published by the American Medical Association:^[]

• Provide notice-and-consent forms for patients enrolled in commercial health coverage to protect against balance billing.

• Learn and follow consent protocols related to emergency services and post-stabilization care at hospitals or freestanding emergency departments.

• Provide good-faith estimates to uninsured or self-pay patients on a timely basis.

For Marino, the protections offered by the No Surprises Act may lead to bigger problems down the road.

“And while I think that preventing surprise billing to patients is an important goal,” he added, “I do not think this legislation clearly solves the issue, and (it) will create new issues for healthcare professionals and healthcare facilities.”