AHA Addresses No Surprises Act Patient Notice and Consent Provisions

AHA released comments regarding CMS’ guidance on notice and consent and public disclosure provisions under the No Surprises Act, recommending that CMS make some changes to the documents to reduce administrative burden for patients and providers.

The letter outlined suggestions for improving CMS’ forms and notices for patients who may choose to waive their balance billing protections, with the goal of ensuring that patients can make an informed decision while limiting administrative burden.

“While we share the objective of ensuring patients have the information they need to make informed decisions about their care, we believe steps must be taken to accomplish this goal without adding unnecessary costs and burdens to the health care system,” the letter explained.

AHA recommended that CMS implement a stakeholder advisory group to rethink the design of the forms and discuss how the documents will be distributed to patients and payers.

Provisions under the No Surprises Act require CMS to include guidance for the rare instance that a patient might want to opt out of their balance billing protections and instead be billed for out-of-network services.  

“The notice-and-consent documents are critical to ensuring patients are protected from surprise medical bills while retaining the opportunity to choose their providers,” the letter reasoned.

For the standard notice and consent form, AHA recommended that CMS “modify the standard document to include a distinct signature line for when the notice was given, with a separate signature line confirming that consent has been provided.”

The current document does not include a separate line for the patient’s signature and date of receipt, which could cause compliance issues.

The statute also necessitates that good faith estimates of the costs of medical services be included in the notice so that patients are aware of their potential out-of-pocket costs if they choose to opt out. AHA urged CMS to provide guidance to providers on how to calculate good faith estimates.

The existing guidance also states that each out-of-network provider is responsible for notifying patients about these policies unless they have an agreement with a facility to handle the process for them. However, this means that facilities may pick and choose which out-of-network providers to handle the notice and consent process for.

“As such, the AHA recommends that the standard form and instructions should be modified to clarify that facilities can choose which out-of-network providers they plan to work with as part of their management of the notice and consent process and clearly state that this form may not encompass all potential out-of-network providers,” the letter suggested.

The current rule requires providers and facilities to translate the notice and consent forms in the top 15 languages in their region. AHA recommended that CMS complete the translations for the providers to mitigate administrative burden and ensure compliance.

AHA also suggested that CMS adopt a standardized process to distribute forms to payers. Currently, there is no electronic method to distribute documents. AHA proposed that CMS create an electronic transaction process to eliminate faxing and other burdensome forms of distribution.

In order to be compliant, providers and facilities have to publicly post patient balance billing protection information and provide patients with a one-page notice outlining the protections. The current rule states that these notices should be provided to patient no later than the time the payment is requested.

AHA recommended that CMS provide more flexibility to providers and facilities to send out the notices.

“Specifically, there are instances where patients will have ongoing treatment regimens that require multiple visits and/or courses of care. In these instances, we ask that providers not be required to provide the notice for either each visit or course of treatment,” the letter stated.

“Instead, providers could be required to provide the notice at the outset, followed by periodic reminders, such as each quarter. This will allow for continued patient engagement on billing expectations without overburdening providers.”

While this letter focused explicitly on improving notice and consent forms and distribution processes, AHA stated that it will provide further comments on the actual policies for notice and consent and public disclosure requirements in a future letter.