The No Surprises Act was passed on December 27, 2020 as part of the Consolidated Appropriations Act. This legislation, which is a law, goes into effect for policy or plan years beginning on or after January 1, 2022.
The law establishes federal standards to protect patients from balance-billing or receiving a “surprise” bill for receiving emergency care, air ambulance services and treatment by an out-of-network provider. This new law creates a uniform level of protection that applies to all group and individual major medical plans nationwide, including those that offer fully-insured coverage and self-funded group health plans.
Below, we will cover important factors of the law; please do not hesitate to reach out should you have any additional questions and please feel free to forward this email to anyone in your network that you believe will benefit from the information.
Patient Protections
The law states that should a patient receive emergency care, air ambulance services or out-of-network treatment at an in-network facility, the facility and providers may only charge the patient what they would have otherwise paid if the provider/facility was in-network. All additional costs may only be billed to the patient’s health plan. The protections remain in place until the patient can be transferred to an in-network facility.
There are exceptions though. A patient who receives out-of-network-treatment at an in-network facility may receive a balance bill if they (1) receive non-emergency care, (2) provide informed consent for the treatment at least 72 hours before the services are rendered, (3) a good-faith cost estimate is provided to the patient at the time of the consent, (4) is provided instructions for how to receive comparable services from an in-network provider.
The exception does not apply to emergency medicine, pathology, radiology, neonatology and items/services provided by assistant surgeons, hospitals and intensivists, diagnostic services, included radiology and laboratory services. The law allows for the list of exceptions to be expanded through future regulatory action.
A non-participating provider working through an in-network facility may not balance bill a patient if there isn’t an equivalent participating provider who can provide the same care at the facility instead.
There are limits to the No Surprises Act. The surprise billing ban does not apply to regular vehicular ambulance services nor does it apply to instances when a patient voluntarily elects to see an out-of-network provider, for example, a specialty care visit.
Arbitration Process for Providers and Health Plans
Since providers will not be balance billing the patients for the reasons mentioned above, they will instead bill the patient’s health plan. The health plan can decided to accept the charges and pay the bill or engage in private negotiations to resolve the claim.
The law does not limit the negotiations to a payment scale, however, it does specify that the talks can last no longer than 30 days. After 30 days, both parties have four days to accept the results of the negotiation or request independent arbitration for the claim.
Over the next year, the federal government will be developing regulations to define the dispute resolution process and will be creating a list of independent entities capable of handling such arbitrations.
What’s Next?
Over the coming year the Biden Administration is expected to rollout an extensive regulatory process to meet the January 1, 2022 deadline. The main tasks include developing: (1) clear criteria to govern the dispute resolution proceedings, (2) qualification standards for independent entities capable of handling dispute resolution for plans and providers, (3) a list of arbitrators, (4) a plan for enforcement and how the federal dispute process will work with existing state balance billing laws.