Learn how to navigate the rules of the No Surprises Act in your practice.
The No Surprises Act (NSA) was enacted into law at the end of 2021. The law protects patients covered by a commercial plan (issued through their employer, a health insurance marketplace exchange, or an individual health insurance plan), from financial liability by prohibiting out-of-network providers and facilities from sending unexpected “surprise” medical bills that exceed in-network cost sharing amounts when a patient inadvertently or unknowingly uses an out-of-network provider or facility for emergency services (including air ambulances) or receives non-emergency services from an out-of-network health care provider at an in-network facility.
The U.S. Departments of Health and Human Services (HHS), Labor and the Treasury, alongside the Office of Personnel Management recently issued new rules and guidance effective January 1, 2022, implementing key provisions of the NSA. The following rules do not apply to patients covered through Medicare, Medicaid, or TRICARE, or receiving care through the Indian Health Services or Veterans Health Administration.
The NSA bans surprise bills for most emergency services, even if furnished out-of-network and without approval beforehand (prior authorization). Out-of-network cost-sharing (such as out-of-network coinsurance or copayments) for most emergency and some non-emergency services are banned. This means that patients cannot be charged more than in-network cost-sharing for these services, and out-of-network charges and balance bills for certain additional services (like anesthesiology or radiology) furnished by out-of-network providers as part of a patient’s visit to an in-network facility are also prohibited.
Specifically, the rules include requirements for calculating the Qualifying Payment Amount (QPA) if payment disputes go to arbitration, and specifies Notice and Consent requirements for circumstances where patients may choose to wave their rights under the NSA and agree to pay higher out-of-network charges. Consent forms must be signed at least 72 hours before a scheduled appointment and at least three hours in advance when the appointment is made on the same day. Health care providers and facilities must make available an easy-to-understand notice explaining applicable billing protections, who to contact if a patient has complaints about medical billing or concerns that a provider or facility has violated the protections.
The rules also establish an Independent Dispute Resolution (IDR) process to resolve payment disputes between insurance plans and providers. The federal agencies have developed a list of certified organizations to serve IDR entities in the dispute resolution process between providers, facilities or providers of air ambulance services and group health plans, health insurance issuers and Federal Employees Health Benefits program carriers.
Providers, facilities, and air ambulance services are required to give a Good Faith Estimate (GFE) of expected charges after an item or service is scheduled, or upon request for uninsured and self-pay individuals. HHS has provided a model form to itemize services for the GFE. A Patient-Provider Dispute Resolution (PPDR) process has also been established for uninsured and self-pay individuals when medical bills exceed the GFE by $400 or more. Patients have 120 days to file a dispute. To utilize the PPDR process, patients will be charged a $25 administrative fee at the start of the process. If an item or service is scheduled at least 3 business days before the date of service, patients must be given a GFE no later than 1 business day after scheduling. If the item or service is scheduled at least 10 business in advance of the date of service, the provider or facility must give a GFE no later than 3 business days after scheduling or requesting. View more information on the GFE.
The NSA supplements state surprise billing laws; it does not supplant them. Instead, the NSA creates a “floor” for consumer protections against surprise bills from out-of-network providers and related higher cost-sharing responsibility for patients. So as a general matter, as long as a state’s surprise billing law provides at least the same level of consumer protections against surprise bills and higher cost-sharing as does the No Surprises Act and its implementing regulations, the state law generally will apply. For example, if your state operates its own patient-provider dispute resolution process that determines appropriate payment rates for self-pay consumers and the HHS has determined that the state’s process meets or exceeds the minimum requirements under the federal patient-provider dispute resolution process, then HHS will defer to the state process and would not accept such disputes into the federal process. As another example, if your state has an All-payer Model Agreement or another state law that determines payment amounts to out-of-network providers and facilities for a service, the All-payer Model Agreement or other state law will generally determine your cost-sharing amount and the out-of-network payment rate. CMS also published the Guidance for States, Plans, and Issuers on State External Review Processes Regarding Requirements in the No Surprises Act.
To learn more about implementation of the NSA, visit the CMS Ending Surprise Medical Bills website or call the Help Desk at 1-800-985-3059 for more information. TTY users can call 1-800- 985-3059.