No Surprises Act: Death by Attestation

No Surprises Act: Death by Attestation

By now, we’ve all heard more than we probably want to about the No Surprises Act and Good Faith Estimates. But there is another part to the whole Consolidated Appropriations Act puzzle that concerns mental health professionals.


What we think of as the “No Surprises Act” is not a law unto itself. No Surprises, along with several other healthcare provisions that will affect practices in the years to come, was bundled into a huge spending bill passed on December 21, 2020, titled the Consolidated Appropriations Act.

An interesting factoid, courtesy of the Senate Historical office: The CAA is the longest bill ever passed by Congress, to date. It tops out at 5,593 pages.

I wonder how many members of Congress actually read all 5,593 pages …

This blog concerns the tightening of provider directory regulations.

There are regulations for provider directories? Really?

Yep. And they aren’t new, either.

As of January 1, 2016, CMS became legally authorized to fine Medicare Advantage plans up to $25,000 per beneficiary if the number of errors in network provider directories exceeded a certain threshold. It doesn’t take a math major to realize that even 50% of this penalty would be a huge chunk of change out of a health insurer’s pockets.

The effect on practitioners began slowly, without much notice or fanfare. You’ve all been subjected to it, probably without ever realizing why (other than to moan about what an annoying pain in the rear it is). Services like CAQH, Availity, and the insurance payers themselves began sending around emails: VERIFY YOUR DIRECTORY ENTRY NOW.

Later, those same emails started to become more nagging, almost threatening, in tone: YOUR QUARTERLY ATTESTATION IS NOW DUE. ACT NOW TO AVOID DIRECTORY REMOVAL.

And. They. Just. Kept. On. Coming. From everyone.


Wait, what? They can do that?


Prior to January 1, 2022, directory suppression of providers who did not re-attest was at the discretion of the health plan. To my knowledge, most plans never suppressed names. The only plan that I have encountered which did, was United Healthcare.

At least on the national level. Some states (California, for one) did have stricter requirements prior to the Consolidated Appropriations Act.

But as of January 1, 2022, the No Surprises Act mandates:

  • Health plans must refund enrollees the additional costs for out of network care if they paid an out of network bill for services & can show they went out of network because of inaccurate plan directories. Yes … Really!
  • Health plans must pay an out of network claim with in-network level cost-sharing, if the patient saw an out of network provider due to a directory error. I would imagine that the patient would have to do some serious advocacy on their own behalf, though.
  • In this event (an out-of-date directory) the out of network provider must not bill the patient more than the in-network cost-sharing. No balance-billing.
  • Providers can require health plans to remove them from the directory at the time they terminate their contract.
  • Health plans must have a regular method of verifying provider directory information.
    • Payers must update their directory within 2 business days of receiving new information.
    • Payers must confirm with providers every 90 days to re-verify accuracy of information.
    • Payers must suppress provider information from directories if attestations aren’t received every 90 days. (Note: suppression does not affect claims for ongoing patients. Those will still be paid at the in-network rate. It’s the online directories that will not list your name. Maybe you don’t care …. But if an existing patient changes insurance, only to consult their new directory and discover that you are no longer listed…then what?)

Certainly, the need for accurate directories is important. Nor would verifying, or attesting, be a huge problem on the provider side, if a way existed for providers to go one place once per quarter and disseminate the same information to all plans. (Wasn’t that the original point of CAQH?) The burden comes with having to go multiple places online to provide the same information, take phone calls, fax or email forms. It’s a burden even for providers who have staff – because employees must be paid. This is employee time that could be devoted to patient care or billing.

Further reading, if you’re so inclined…