By Lindsey Phillips
The No Surprise Act (the "Act"), which became effective January 1, 2022, creates federal protections against surprise medical bills. Surprise medical bills often arise when patients unknowingly receive medical care from out-of-network hospitals, doctors, and other healthcare providers and are billed for the difference between the amount a patient's health plan would pay for in-network providers and the full amount charged for the medical services received. Studies have shown that this occurs in about one in five emergency room visits. It is estimated that the protections afforded in the Act will apply to approximately 10 million out-of-network surprise medical bills a year.
The Act applies to 1) emergency services provided by non-participating providers and/or non-participating emergency facilities and 2) non-emergency services provided by a non-participating provider at a participating health care facility. While the Act applies to most emergency services, including air ambulance transportation and post-emergency stabilization services, it does not apply to ground ambulance transportation. As set forth in the Act, the term "facilities" currently includes hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgery centers. Providers include, but are not limited to, physicians, anesthesiologists, and hospitalists.
The Act prohibits out-of-network providers from billing patients for more than the in-network cost-sharing price. The Act also sets forth guidelines for determining payment for out-of-network services and a process for resolving disputes. Additionally, the Act requires providers to notify patients about their surprise billing protections.
The notice provided to patients must include information regarding 1) the prohibitions on balance billing for emergency or non-emergency services with which the provider or health care facility must comply; 2) any state laws governing balance billing with which the provider or facility must also comply; and 3) contact information for state and/or federal agencies that an individual can contact to report a suspected provider or facility violation of the Act or relevant state laws.
Providers are required to share the notice using three methods: 1) public signage posted prominently at the provider or facility's location (e.g. in a central location where patients check in or pay bills); 2) posting on a public, easily accessible website without any requirements for account sign-up or passwords; and 3) a one-page notice provided directly to individuals enrolled in a group health plan or group or individual health insurance coverage that must be delivered in-person or by e-mail or mail (as chosen by the individual). This one-page notice should be provided before the date and time payment is requested from the individual. The United States Department of Health and Human Services has provided, as part of CMS Form Number 10780, a model notice that facilities and providers can, but are not required to, use.
Of note, in situations where a provider delivers care at the covered healthcare facility, providers and facilities can enter into written agreements stating that the facility is responsible for providing the one-page notice to individuals on behalf of both the facility and the provider. This single disclosure notice must outline the restrictions on surprise billing that apply to both the facility and the provider. If a written agreement is in place between the facility and the provider but the facility fails to provide notice as required by the Act, then the facility - not the provider - is considered in violation of the Act.
The Act also requires providers and facilities to provide good-faith estimates of charges for care to uninsured or self-pay individuals and sets out continuity of care protections to certain individuals when a provider or facility ceases to be an in-network provider due to a termination of contract. Continuing care patients are those who are: 1) undergoing treatment from a provider or facility for a serious and complex condition; 2) undergoing a course of institutional or inpatient care from the provider or facility; 3) scheduled to undergo nonelective surgery from the provider or facility, including receipt of postoperative care from such provider or facility with respect to such a surgery; 4) pregnant and undergoing treatment for pregnancy from the provider or facility; or 5) terminally ill and receiving treatment for such illness from the provider or facility.
For a continuing care patient whose provider or facility's contract termination leads to a change in network status, the plan must: 1) timely notify the patient of the termination and their right to elect continued transitional care from the provider or facility; 2) provide the patient an opportunity to notify the plan or issuer of the need for transitional care; and 3) permit the patient to elect to continue to have the same benefits provided, under the same terms and conditions that would have applied under the plan or coverage had the termination not occurred, with respect to the course of treatment furnished by the provider or facility. This election may last for up to 90 days.
Lindsey Phillips is an associate at Burr & Forman LLP practicing exclusively in the firm's Healthcare Industry Group.
