CMS Updates External Review Requirements for Surprise Medical Billing

On December 30, 2022, CMS issued guidance related to the external review requirement under the No Surprises Act (NSA). The NSA requires insurers and group health plans to have an external review process for any adverse determination related to NSA compliance matters. Examples of such matters, as provided by HHS regulations, include:

• Patient cost-sharing and surprise billing for emergency services.
• Patient cost-sharing and surprise billing protections related to care provided by nonparticipating providers at participating facilities.
• Whether patients are in a condition to receive notice and provide informed consent to waive NSA protections.
• Whether a claim for care received is coded correctly and accurately reflects the treatments received and the associated NSA protections related to patient cost-sharing and surprise billing.

Rather than adopt new external review procedures for this purpose, the DOL, HHS and the Treasury Department (“the departments”) have expanded the existing ACA external review procedures to include NSA matters. The ACA requires insurers and group health plans to adopt external review procedures for participants to appeal adverse benefit determinations of any amount for any reason. The participant must first exhaust the plan’s internal review process. For a fully insured plan, the insurer must follow the state external review process. If the state does not have a process, the insurer would use the federal process administered by HHS. For a self-insured plan, the employer (or the third-party administrator, if so contracted) will utilize the Independent Review Organization (IRO) process. These programs would now also review adverse determinations related to the NSA. If a state program is unable to expand its review in this manner, the insurer may use the HHS or IRO programs.

An employer sponsoring a fully insured group health plan should be aware of these changes. An employer sponsoring a self-insured group health plan should work with its third-party administrator to determine which party is responsible for maintaining the external review process and update contracts accordingly.

CMS Guidance, NSA External Review Process »