By: Ron E. Peck, Esq. I am very excited to let you know that my recent article, regarding the No Surprises Act and its impact on appeals and disputes, will be published in the upcoming issue of The Self-Insurer magazine, published by the Self-Insurance Institute of America (“SIIA”). Here I provide you with an overview of the topic that will be discussed, why this is so important, and how it all impacts our own Plan Appointed Claim Evaluator (“PACE”) service. One upon a time, if a plan beneficiary felt their claim was underpaid – either fully denied, or partially paid – it was fodder for an appeal. Appeals were the only way to secure a review of a disputed plan decision. With the “Affordable Care Act” (or “ACA”) being signed into law in 2010, the volume and complexity of appeals increased. More entities could appeal about more things. Additionally, if they weren’t happy with the results of said appeal, an external review option was added. This all meant more work, tougher work, and a lot more fiduciary risk for entities that were responsible for receiving, reviewing, and making decisions in response to appeals. That’s why, following the passage of the “ACA, we witnessed growing industry concerns over the volume, sensitivity, and complexity of appeals. This, along with the risk associated with fiduciary duties arising from the handling of those appeals, caused The Phia Group to create the Plan Appointed Claim Evaluator (PACE) service. Now, with the passage of the Consolidated Appropriations Act of 2021, the number and difficulty of appeals – as well as risk associated with handling them – will increase even more. Not only will there be more appeals, but the No Surprises Act will also result in providers appealing claims that should be disputed under the “NSA,” (and disputing under the NSA claims that should be appealed).
Amongst the many interesting rules and changes so introduced, the NSA seeks to prevent providers from balance billing patients in specific instances. Balance billing happens when a payer pays to a payee less than the amount to which that payee thinks they are entitled. Historically, the payee would file an appeal, and if the appeal fails, they would then balance bill the patient. In other words, providers generally balance bill patients only when they know they can’t get anything else from the plan. Most providers learn that the plan won’t pay anything else after they file an appeal and lose. Indeed, in the past, any reduced payment would be deemed an adverse benefit determination, and would be eligible for appeal. Skip to 2021, however, and here we find ourselves dealing with a true issue – what is appealed, and what is not? What adverse benefit determination must be appealed, and which triggers the NSA? Certainly, some adverse benefit determinations clearly fall into the bucket of appeals. Yet… not all claims fall so neatly into these buckets. We deal with a vast variety of reduced and denied payments, arising from a tremendous variety of causes. With the creation of an alternative means to challenge a plan’s payment now being established by the NSA, in addition to the appeals process, we can expect an increase in appeal volume (as providers seek to trigger the NSA but mistakenly submit an appeal), complexity (as the players attempt to parse out what should be appealed, and what should trigger the NSA), and confusion (as matters go from an appeal of unpaid claims to a dispute over reduced payments of the same claim, following an overturned denial). In addition to added volume and complexity, there is added fiduciary risk. Plan administrators have learned over time to handle appeals in strict accordance with applicable law and the plan document. The terms of the plan document regularly dictate what is payable, and how much is payable. Now, are these plan administrators authorized to pay something additional during the NSA’s requisite “negotiation period,” without exceeding the authority granted to them by the plan document and Employee Retirement Security Act of 1974 (“ERISA”)? Would an additional payment during negotiations constitute a payment in excess of the maximum allowable amount, and thus, constitute a breach of their fiduciary duty? In summary, it is safe to say that these new regulations and laws will increase the number of entities that may file appeals and broaden the scope of issues about which appeals may be filed, as well as complicate the process applicable to handling adverse benefit determinations and appeals. Additionally, the other “dispute resolution” procedures established by law – separate and distinct from formal appeals – will result in confusion regarding which conflicts are meant to be appealed, versus those that should now be handled via an alternative methodology. This is why the time for PACE is now.