The No Surprises Act: What Providers and Facilities Need to Know

The No Surprises Act (NSA), which is a part of the Consolidated Appropriations Act, 2021 (CAA-21), has introduced comprehensive federal protections to safeguard individuals from receiving unexpected medical bills after receiving emergency medical care or related services. These new provisions, effective January 1, 2022, aim to prevent surprise medical bills that occur when a participant in a health plan receives a bill for healthcare services from an out-of-network (OON) provider or facility that they were unaware of. Since OON rates are typically higher than contracted rates for in-network services, these surprise medical bills can be exorbitant.

Understanding the Patient Protections under the No Surprises Act

Balance Billing Protections for Specific Services

Balance billing refers to the practice of an OON provider or facility charging the individual the difference between the provider’s or facility’s fee and the amount covered by the insurance plan. The NSA and its implementing regulations prohibit balance billing for emergency services received from a nonparticipating emergency facility, including hospital outpatient departments providing emergency services, as well as freestanding emergency departments. Balance billing is also prohibited for nonparticipating providers of emergency services at a participating facility, and for certain non-emergency services, unless the notice and consent requirements are met. Air ambulance services are not exempt from balance billing protections, whereas ground ambulance services are not directly addressed.

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Patient Notice and Consent Waivers from Out-of-Network Providers

Under the NSA, individuals have the option to waive balance billing protections for certain post-stabilization and non-emergency services. This waiver can be exercised if the nonparticipating provider or nonparticipating emergency facility provides the individual with proper notice and the patient consents. This allows individuals to seek out-of-network care knowingly and accept potential balance billing for those services. Nonparticipating providers and facilities are obligated to timely notify health plans or insurers (payors) when the balance billing protections do not apply due to the completion of the notice and consent process.

Disclosure Notice Requirements for Providers and Facilities

Providers and facilities, excluding air ambulance service providers, must provide disclosures to individuals with individual or group health insurance regarding the federal balance billing protections. Providers are only required to provide this disclosure to individuals for whom they provide services at a facility or related to a visit to a facility. The disclosure notice must clearly explain the requirements that apply to the provider or facility regarding the balance billing protections and also outline any relevant state requirements.

Guidelines for Good Faith Estimates

The NSA mandates that providers and facilities provide good faith estimates of charges for scheduled items and services, either when requested by an individual or for items and services scheduled at least three days in advance. A good faith estimate is a notification of the expected charges for a scheduled or requested item or service, including any additional items or services reasonably expected to be provided in connection with the scheduled or requested item or service. The requirement to provide good faith estimates applies to a wider range of facilities than those affected by the balance billing protections. It includes institutions in states where state or applicable local laws require licensing.

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The Department of Health and Human Services (HHS) has not yet established regulations for good faith estimates concerning insured individuals. Enforcement of this requirement has been deferred to allow for the development of technical infrastructure that enables providers and facilities to transmit necessary data to payors. However, HHS has implemented regulations for good faith estimates for uninsured and self-pay individuals.

Dispute Resolution Processes

Providers and facilities need to understand two dispute resolution processes under the NSA. The Independent Dispute Resolution (IDR) process is employed by providers, facilities, and payors to determine the total amount that a payor must reimburse a nonparticipating provider or nonparticipating emergency facility for items and services subject to the balance billing prohibitions.

The patient-provider dispute resolution process is available for uninsured individuals who receive a bill that substantially exceeds (at least $400) the good faith estimate they received from a provider or facility.

For further information on complying with the No Surprises Act, read The No Surprises Act – five compliance steps for providers and facilities.

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Note: This article was written exclusively for Garrity Traina.