Directory glitch caused patient overcharge? Under NSA, you pay, not the plan

August 8, 2022
In the News

Question: I know the No Surprises Act (NSA) and the CMS rules that put it in practice require that provider directories be kept up to date. But I thought that was all the insurers' responsibility. The other day I was looking at guidance from a CMS' Center for Consumer Information & Insurance Oversight (CC/1O) that says, among other things, "Under the No Surprises Act, providers and health care facilities must generally ... refund enrollees amounts paid in excess of in-network cos/­sharing amounts with interest, if the enrollee has inadvertently received out-of-network care due to inaccurate provider directory information." Why is this the providers' responsibility?

by: Roy Edroso


Plans do have much of the responsibility for clean directories on which patients rely to keep in-network and out­-of-network information straight. Robert Mortensen, CEO of health care tech company Opyn Market in Wayne, Pa., points to Section 116 of the NSA, which requires that plans must verify and update their provider directory a minimum of every 90 days to ensure patients have accurate information regarding in- and out-of-network provider data.

But, Mortensen adds, providers have their own NSA requirements: They have to submit their own directory information to the plan whenever they begin a new network agreement, when they terminate a network agreement, and when there are changes to the content of provider information. The law also says you'll have to share the information "at any other time (including upon the request of plan or issuer) determined appropriate by the provider, health care facility, or the Secretary of Health and Human Services (HHS)."
The directory information should include names, addresses, specialty, telephone numbers and digital contact information of all your individual health care providers, as well as their insurance network information.

"Plans are actually somewhat happy about this, since state laws that require accurate directories put all the onus on the plan to get the provider information correct," says Matthew Albright, chief legislative affairs officer at health care solutions company Zelis in Washington, D.C.

Albright knows keeping directories up to date is not as easy as it sounds: "Often even the provider gets their own information wrong," he says. "The most successful processes are those that include what the provider [reports], and then bouncing that information off third-party databases to see if everything lines up."

And yes, Albright says, it does appear that in its "Refunds to Enrollees" section the NSA says the provider must refund the member anything over the in-network cost-sharing amounts if the member understood the provider to be in-network through the plan's database, provider directory, or response protocol such as phone, portal or email.

If you wonder why the plan gets a pass, note that NSA also says "nothing in this section shall prohibit a provider from requiring in the terms of a contract, or contract termination, with a group health plan or health insurance issuer ... that the plan or issuer bear financial responsibility ... as applicable, for providing inaccurate network status information to an enrollee." So if you have that in your contract with the appropriate plan, you should go ask for the money.

Also, Mark Martin, vice president of product management for RCM company Availity, says HHS has suggested it will create an arbitration process for disputes over these overcharges, though that process has yet to materialize.

But before you look for ways to dun the plan, make sure you've held up your end first. Albright reminds you that the NSA requires that you have "business processes" in place that "ensure the timely provision of provider directory information" when it's called for (PBN 7/19/21). If you haven't instituted such a protocol and that's why the plan had the wrong information, you're probably stuck.

• "The No Surprises Act's Continuity of Care, Provider Directory, and Public Disclosure Requirements": 274577-1b-training-2nsa-disclosure-continuity-care-directoriesfinal-508.pdf
• The Consolidated Appropriations Act of 2021 (including the No Surprises Act):

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