The No Surprises Act and How Medical Providers Must Comply with the Federal Ban on Surprise Billing
The “No Surprises Act” (“NSA”), new federal legislation intended to protect patients from “surprise medical billing”, goes into effect on January 1, 2022. While most states have already enacted laws to address surprise billing, limited protections and various loopholes permitting balance billing at the state level compelled federal action to address the need for greater consumer protection.
For example, New York’s surprise billing law passed in 2015 mirrors the federal NSA in mandating that a patient only has to pay the cost-sharing applicable to in-network treatment for out-of-network services, as long as the services were provided without the patient’s knowledge.
Surprise medical billing typically occurs in emergency situations when a patient is unable to provide input as to the care received and unknowingly receives care from a facility or provider outside of his or her health plan’s network. Out-of-network providers and facilities usually charge the patient’s insurer a higher rate than the in-network contracted rate. If the insurer refuses to pay the full out-of-network charge, the provider or facility often pursues the “balance” by directly billing the patient. Regardless of the patient’s inability to choose which hospital they are transported to, the patient has ultimate responsibility for these unexpected charges.
The NSA seeks to reduce these surprise out-of-pocket costs by prohibiting providers and healthcare facilities from sending balance bills to patients for additional out-of-network amounts under many circumstances. Under the NSA, patients would bear responsibility only for the patient charges that would have been levied if the services had been provided by an in-network provider.
Independent Dispute Resolution for Providers and Insurers
The NSA thereby removes the patient as the intermediary between providers and insurers in their payment disputes and puts the onus for reimbursement negotiation on those with more equal bargaining power. To ensure a fair and complete process, the NSA also delineates an independent dispute resolution (“IDR”) process that goes into effect thirty (30) days after open negotiations fail and payment disputes are unresolved. The ultimate decision of the independent dispute resolution entity, which must be certified under the NSA, is binding on all parties.
Good Faith Estimate for Self-Pay Patients
The NSA requires providers and facilities to inform their patients, both orally and in writing, of the “good faith estimate” of treatment costs if the patient is not insured or covered by a federal healthcare plan at least one business day prior to the provision of services. The Centers for Medicare and Medicaid Services (“CMS”) has released a template with various fillable data elements for providers to utilize in delivering these good faith estimates. The template (CMS-10791 – 11. 2. Good Faith Estimate Template) can be found at the link below. Patients will have the ability to dispute any final medical bill should the charges amount to at least $400 more than the good faith estimate provided. Providers will be obligated to provide templates to patients who wish to dispute their final medical bill. To support the patient-provider dispute resolution process, the NSA will charge a selected dispute resolution (“SDR”) entity to resolve disputes with uninsured or self-pay patients.
Accordingly, providers would be well advised to develop good faith estimates of their charges to make them available on January 1, 2022.
Bleakley Platt’s Health Law Practice Group can assist in navigating the requirements of the NSA. For further information, contact Robert Braumuller or Zaina S. Khoury, at RBraumuller@bpslaw.com or ZKhoury@bpslaw.com