In an effort to increase price transparency and shield patients from unexpected medical bills, Congress implemented the No Surprises Act, effective January 1, 2022. The Act is being implemented primarily through two Interim Final Rules released in July and September of 2021, which provide nuances to what providers can expect as they begin preparing for upcoming changes in the law. The rules combine to require in general three principal steps for providers:
- Restrict surprise billing for in-network providers and limit cost-sharing for out-of-network patients;
- Provide out-of-network, uninsured, and self-pay (e.g., insured patients electing to not utilize their health plan for care received) patients with good faith estimates of expected charges ahead of rendering medical services; and to
- Engage in dispute resolution processes with plan’s self-insured and uninsured patients.
Surprise Billing and Cost Sharing
Under the new rules, patients on in-network plans cannot generally be balance-billed for services provided by in-network providers or at in-network facilities. Additionally, patients that received emergency or ancillary services from out-of-network providers cannot be balance-billed (including emergency medicine, anesthesiology, pathology, radiology, neonatology, care provided by assistant surgeons, hospitalists, intensivists, and diagnostic services).
In instances where providers may balance-bill (e.g., when proper patient consent is received in writing and a non-emergent/non-ancillary service is being provided), cost-sharing totals must be calculated based on an applicable All-Payer Model Agreement, an amount determined under specified state law, or the lesser amount of the charged or Qualified Payment Amount.
Notices advising of patient protections against balance billing will need to be prominently displayed on the facility’s website and in publicly accessible places where patients schedule care, check-in, or make payments.
Good Faith Estimates
Additionally, the rules require providers to furnish “good faith estimates” to uninsured and self-pay patients, as well as to any individual who requests an estimate. Good faith estimates, which detail services and expected charges for primary and reasonably expected services to be provided to the patient, must be included alongside a consent for out-of-network patients who can be balance-billed. These estimates will need to include services provided by co-providers (e.g., a provider or facility other than the one rendering the primary service that furnishes items or services that are customarily provided in conjunction with a primary item or service). However, CMS has delayed enforcement of this provision until further notice.
For insured patients, the provider must notify the plan of expected charges, and will then issue an Advanced Explanation of Benefits to the patient. Enforcement of this provision, however, has been likewise delayed until further clarification is issued by the departments.
Additionally, information advising of the availability of an individual’s “Good Faith Estimate” must be prominently displayed on the provider facility’s website; additionally, a notice must be physically displayed on-site in the office and other provider/facility locations where scheduling and questions about cost of health care occur.
Dispute Resolution
The Interim Rule released in September established guidance on dispute resolution processes between providers and healthcare plans, as well as providers and uninsured/self-pay patients. In instances where the health plan denies a provider or facility’s claim, or pays less than expected, the provider can choose to start an open negotiation period. If the issue is not resolved within 30 business days, then the parties may begin the federal independent dispute resolution process to resolve the dispute, which enlists a certified independent dispute resolution entity.
The rules also outline a dispute resolution process for uninsured and self-pay patients that receive a bill substantially greater than the expected charges from the good faith estimate. Beginning January 1, 2022, self-pay and uninsured patients may begin the dispute resolution process where billed charges exceed $400 of what was included in the good faith estimate. Patients have 120 calendar days from receiving the bill to begin the process.
Notably, a month ahead of the effective date of the regulation only interim rules implementing the Act have been made available to providers. The regulations, issued by the Departments of Health and Human Services, Labor, and the Treasury, might well further evolve throughout CY 2022.
For assistance developing notices or signage required by the No Surprises Act or policies/procedures to implement compliance with the Act, or to request a compliance review of materials already developed by your organization, please call 708.478.7030 or contact Advis.
Published: December 8, 2021
