There has long been a problem in paying for medical care: patients often cannot choose to get care only within their coverage. An emergency patient could not shop for an in-network option, and even when the care was elective and the patient chose their facility and practitioner, out-of -network providers whom they did not choose were often also involved in their care. The patient would then receive a large bill that their insurance only partially covered and could also be balance-billed by the out-of-network provider.
While some patients with certain coverage were protected against these situations by either applicable federal or state law, there were still patients with individual or group health plans who were not. The No Surprises Act was therefore passed as part of the Consolidated Appropriations Act in 2021.
What is the No Surprises Act?
The No Surprises Act extended protections against “surprise billing” to patients with individual or group health plans and also established protections for uninsured and self-pay patients.
Is the No Surprises Act retroactive?
No. The No Surprises Act took effect on January 1, 2022 and covered the billing for care from that point on. As such, medical services provided before this date, even if still unpaid, do not have to comply with the Act.
Are only doctors affected by the No Surprises Act?
No. Licensed health care providers of any kind, such as physicians, nurse practitioners, dentists, chiropractors and physical therapists, are covered by the No Surprises Act if their professional activity and billing come under its scope.
What is the Good Faith Estimate?
While the No Surprises Act may be viewed as being primarily addressed to deal with insured patients, uninsured patients and patients who are not using their insurance are also affected through the mechanism of a Good Faith Estimate. When uninsured/self-pay patients are involved, health care providers and facilities must inform them of the availability to receive a “good faith estimate” of expected charges.
What if my practice doesn’t have any insurance, and only takes cash?
Based on the language of the Act, even if you are not billing insurance companies and being paid in cash, it is recommended that the health care providers and facilities must inform them of the availability to receive a “good faith estimate” of expected charges.
Do I have to post something?
Yes. The No Surprises Act requires a “Right to Receive a Good Faith Estimate of Expected Charges,” be posted, both in a general area and specifically where patients are going to be scheduling their care or discussing the cost, and must also be included on the website.
Do I have to provide something?
Yes. If the patient requests a Good Faith Estimate, it must be provided in writing, and if it is sent electronically the format must be one that allows the patient to print it out.
Are there required elements of the Good Faith Estimate?
Yes. The Good Faith Estimate must identify the patient by name and date of birth and the provider by name, NPI, and tax ID number. It must include a clear description of the services and state the location where they will be provided, including any cooperating facilities and providers. It should itemize goods and services expected to be provided, along with their applicable diagnostic codes (if known), service codes, and expected charges, but there should also be a disclaimer that it is only an estimate and that the final items, services, or charges may differ.
There must also be a clear statement of the patient’s right to dispute resolution if the actual billed charges are $400 or more above the Good Faith Estimate. This should include where the patient can find information about how to initiate the dispute process and a statement that doing so will not adversely affect the quality of health care services furnished to the patient.
Finally, to avoid patients believing that they are now bound to undergo the care that the Good Faith Estimate covers, the Good Faith Estimate must clearly state that it is not a contract for services and does not require the patient to obtain listed services from any of the providers or facilities identified in it.
What is the effect on Balance Billing?
Balance billing refers to a provider or facility billing a patient for the difference between their charge and the amount that the patient’s coverage allows. Before the No Surprises Act, this could be very substantial when the provider or facility was out of network. Under the No Surprises Act, these surprise bills are restricted for certain patients who get emergency care, non-emergency care from out-of-network providers at in-network facilities, and air ambulance services from out-of-network providers.
Are there exceptions?
Yes. There can be an exception to the limitation on balance billing if the patient agrees and waives their protections. This is referred to as the Notice and Consent Exception. However, all services are not subject to this exception.
A patient cannot waive their balance billing protections for non-emergency ancillary services or urgent care services. Ancillary services in non-emergency settings generally include services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, services and items provided by assistant surgeons, hospitalists, and intensivists, diagnostic services, including radiology and laboratory services, and services and items provided by an out of network provider when there is no available in network provider who can furnish such a service or item. Under the same premise that balance billing should not apply when a patient is in no position to make treatment choices, this exception also does not apply to services or items that are furnished when unforeseen or urgent medical needs arise from services or items that the patient already waived.
What Is Still Unresolved?
As with any law passed there is always a period where not all requirements are clear and you are left waiting for additional guidance for compliance.
For purposes of the Good Faith Estimate, one unresolved issue involves certain facilities being required to provide the Good Faith Estimate from “co-providers” and “co-facilities.” The “convening provider or facility” is the provider or facility that is responsible for scheduling the primary items or services. Other providers or facilities that furnish items or services in conjunction with the primary item or service furnished by the convening provider or facility are considered “co-providers” and “co-facilities.”
In the case of co-providers and co-facilities, from January 1, 2022 through December 31, 2022, the will exercise its enforcement discretion in situations where a Good Faith Estimate provided to an uninsured/self-pay patient does not include expected charges from co-providers or co-facilities. We would expect additional guidance on this particular issue to evolve.
For purposes of the balance billing prohibition, there has been considerable pushback on the independent dispute resolution process set up for providers and facilities in disputes with payors over reimbursements.
I heard the act is no longer enforceable, is this true?
No, the Act is still enforceable, but some aspects of the rules are being challenged. Recently, the Texas Medical Association (TMA) won its lawsuit alleging that the method of arbitrating payment disputes unfairly favored insurers. Texas has actually been a leader in balance billing protection for patients, but the TMA alleged that requiring arbiters to prioritize the offer closest to the Qualified Payment Amount (the payor’s median contract rate for the same or similar service in that region) stacked the deck in favor of the insurers and incentivized them to refuse to negotiate and to offer the lowest payments. It raised the real concern that unfair payment rules would result in providers and facilities restricting services or even closing, and so would reduce access to care. On February 23, 2022, the District Court sided with the TMA and vacated the disputed section of the rule. Currently, the Federal agencies named in the suit have not appealed, but they did release a memo saying that they would be updating and revising guidance based on the court’s decision.
With other similar suits still pending, this could be a very substantial and beneficial change in the effect of the law on providers and facilities, but will still be one that they will now have to learn how to navigate advantageously.
Contact ByrdAdatto
The advent of the No Surprises Act, a new and powerful law that is already changing, is an example of the need to accommodate regulations in real-time while also being alert for changes that litigation may bring. In that environment, expert guidance is essential. If you have questions or concerns about how this law will be affecting your practice, contact ByrdAdatto for a consultation at info@byrdadatto.com.
