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Florida Specified State Law Under the No Surprises Act

January 19, 2022

By: Becky Greenfield

CMS confirms Florida’s emergency services statutes and regulations are specified state laws for purposes of out-of-network reimbursement rates and the federal independent dispute resolution (“IDR”) process.

Effective January 1, 2022, the No Surprises Act (“NSA”) was designed to protect patients from surprise medical bills for certain services. While components of the NSA and certain state legislation overlap, the NSA explicitly defers to state legislation for certain matters.

Specifically, the NSA defers to “specified state laws” for (i) calculating the proper reimbursement rate for out-of-network emergency services and non-emergent services provided by out-of-network providers at in-network facilities; and (ii) resolving out-of-network payment disputes between health plans and providers for health plans regulated by the state’s insurance code (e.g., individual and small group insurance and health maintenance organizations (“HMO”)) (collectively, “State Regulated Insurance”). The NSA defines a “specified state law” as a state law that provides a method for determining the total amount of payment owed to an out-of-network provider or facility.

If the state lacks a state specified law, the NSA’s calculation for out-of-network services applies to State Regulated Insurance claims. For now, this is the plan’s in-network median contract rate for the services in the market, also known as the “QPA”, unless the provider demonstrates sufficient proof that the QPA is incorrect. Additionally, if no specified law exists, the federal IDR process applies to State Regulated Insurance, meaning the provider must pursue arbitration, and such IDR process is not reviewable by the courts, except in very limited circumstances.

In June of 2021, CMS distributed a survey to the states, asking in part, whether they had a specified state law. Today, CMS published its formal response pertaining to Florida. In its Florida on Enforcement and Dispute Resolution correspondence, CMS issued its determination that Florida’s emergency statutes, sections 627.64194 and 641.513(5), Florida Statutes, are specified state laws that apply for purposes of determining the out-of-network rate for emergent services provided by out-of-network providers and facilities and non-emergent covered services provided by out-of-network providers at in-network facilities rendered to insured patients with respect to State Regulated Insurance.

Additionally, Florida’s voluntary arbitration process set forth in section 408.7057, Florida Statutes and Florida Administrative Code 59A-12.030 will apply to State Regulated Insurance (“Florida IDR”), with a few exceptions.[1] With respect to Florida HMO plans, the federal IDR process will apply to claims falling below the disputed claim amount thresholds: $10,000 for hospital inpatient claims; $3,000 for hospital outpatient claims; and $500 for physicians. However, the Florida IDR process allows providers to aggregate claims to exceed such thresholds. Therefore, Florida providers will likely be able to avoid the federal IDR process for all State Regulated Insurance claims.

CMS’ decision has significant positive implications for Florida providers seeking to recover fair payment from out-of-network health plans. It ensures fair out-of-network payment, which must be calculated at the lesser of (i) the provider’s charges, (ii) the usual and customary provider charges for similar services in the community where the services were provided, or (iii) the charge mutually agreed to by the insurer and provider.[2]

[1].           §§ 408.7057(2)(b), 627.64194, Fla. Stat.

[2].           §§ 627.64194(4), 641.513(5), Fla. Stat.