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The No Surprises Act – five key takeaways for providers and facilities

The No Surprises Act (NSA), (part of the Consolidated Appropriations Act, 2021 (CAA-21)), effective January 1, 2022, includes extensive federal protections for individuals from getting surprise medical bills after receiving emergency medical care and certain related services.

Surprise medical bills can happen when a participant in a health plan receives an unexpected bill for health care services from a provider or facility that the individual does not know is out-of-network (OON) with the participant’s plan. As OON rates typically are higher than contracted rates for in-network services, surprise medical bills can be very large.

The NSA’s surprise billing provisions apply to providers (including physicians, billing practitioners, and air ambulance service providers) and facilities (including hospitals, freestanding emergency departments, and urgent care centers) through amendments to the Public Health Service Act (PHSA).

There are extensive requirements from the NSA that providers and facilities should know about and understand.

Understanding patient protections covered under the No Surprises Act

Balance billing protections for certain services

Balance billing is when an OON provider or facility charges an individual the difference between the amount the provider or facility charged for the service and the amount the plan paid. The protections against surprise medical billing in the NSA and implementing regulations prohibit balance billing for emergency services from a nonparticipating emergency facility (including hospital outpatient departments that provide emergency services) or freestanding emergency departments and from a nonparticipating provider of emergency services at a participating facility, as well as certain non-emergency services, unless the notice and consent requirements are satisfied. The NSA also prohibits balance billing for air ambulance services (though not ground ambulance services

Patient notice and consent waivers from out-of-network providers

The NSA allows an individual to waive balance billing protections for certain post-stabilization and non-emergency services if the nonparticipating provider or nonparticipating emergency facility has provided the individual with notice and the patient consents. This allows individuals to knowingly seek OON care if they agree in advance to being balance billed for the services. Nonparticipating providers and facilities must timely notify health plans or insurers (payors) when the balance billing protections do not apply because the notice and consent process has been completed.

Disclosure notice requirements for providers and facilities under the No Surprises Act

Providers (except air ambulance service providers) and facilities must provide disclosures to individuals who have individual or group health insurance about the federal balance billing protections. Providers only need to provide this disclosure to individuals that they provide items or services to at a facility or related to a visit at a facility.

The disclosure notice must clearly explain the requirements that apply to the provider or facility about the balance billing protections and also describe any applicable state requirements.

Guidelines for good faith estimates required by the No Surprises Act

The NSA requires providers and facilities to make good faith estimates of charges for items and services that are scheduled at least three days in advance or when requested by an individual. A good faith estimate is a notification of expected charges for a scheduled or requested item or service, including items or services that are reasonably expected to be provided in connection with the scheduled or requested item or service.

The requirements to provide good faith estimates apply to more types of facilities than are affected by the balance billing protections and include institutions in any state in which state or applicable local law provides for the licensing of the institution.

The Department of Health and Human Services (HHS) has not yet promulgated regulations regarding good faith estimates for insured individuals and has deferred enforcement of this requirement. The delay is for development of the technical infrastructure for providers and facilities to transmit necessary data to payors. HHS has implemented regulations for good faith estimates for uninsured and self-pay individuals.

Dispute resolution processes

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

The patient-provider dispute resolution process is used by uninsured individuals if they receive a bill that is substantially in excess (at least $400) of the good faith estimate received from a provider or facility.

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

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This post was created with our Practical Law healthcare attorney-editors. As these issues are always evolving, the best way to stay updated is by letting our 300+ full-time attorney-editors help you.

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