Originally published in Utah Physician Magazine, Oct/Nov 2023
OVERVIEW
The No Surprises Act (NSA, or the Act) is a federal law governing medical billing that went into effect on January 1, 2022. It is designed to curb surprise medical billing and applies predominantly to emergency services, air ambulance services provided by out-of-network providers, and services provided by out-of-network practitioners at in-network facilities. It also introduces requirements to issue good faith estimates of medical service costs to self-pay and uninsured patients. This article provides a brief overview of some of the law’s requirements that may impact the billing practices of local practitioners.
EMERGENCY SERVICES
Under NSA, patients covered by commercial health insurance plans who receive emergency care at an emergency department are only required to pay the in-network cost-sharing amount for out- of-network services necessary to evaluate and stabilize such patients during their emergency. Balance billing (the practice of charging the patient the balance of the bill remaining after insurance premiums have
been received) is prohibited. Post-stabilization care, as part of the same visit in which the emergency treatment occurred, can be subject to the same billing limitations. Balance billing for patient post-stabilization care is only permissible if both: (1) the treating provider determines that the patient would be able to travel to an in-network provider using nonemergency transportation, and (2) the patient consents to the out-of-network treatment through a written consent that conforms to the specific requirements of the NSA.
NONEMERGENCY SERVICES AT IN-NETWORK FACILITIES
Out-of-network providers serving patients at in-network facilities are also restricted in their billing practices under the NSA. Patients at in-network facilities may only be billed beyond the standard in-network cost-sharing rate for out-of-network services if the provider: (1) delivers a clear written notice explaining potential out-of-network services which could result in higher charges, (2) provides a good faith estimate (more discussion below) of the potential charges for receiving services from the out-of-network provider, and (3) obtains the patient’s written consent acknowledging the potential additional costs and agreeing to receive out-of-network care. If a patient has not clearly been informed by the process above (or even if the process was followed, but did not conform to specific NSA criteria), the NSA insulates patients from any costs beyond their in-network cost-sharing rate.
GOOD FAITH ESTIMATES
The NSA requires providers to give an estimate of the expected charges for a medical service to patients receiving such service. While the Act requires these “Good Faith Estimates” (GFEs) for all patients, enforcement of GFEs for insured patients is on hold until regulations for implementation are finalized. For now, GFEs must be provided only to patients who are uninsured or not using insurance (together, “Self-pay Patients”). The duty to provide a GFE is generally triggered when: (1) a service is scheduled for a Self-pay Patient, (2) a Self-pay Patient requests a GFE prior to scheduling care, or (3) a Self-pay Patient makes any inquiry requesting costs of a service. The GFE must be provided before services are rendered to grant patients an opportunity to make an informed decision before they receive care. The NSA requires timely responses to GFE triggers. If a service is scheduled at least three business days in advance of when it is provided, then a GFE must be provided to the patient no later than one business day after the date it was scheduled; or, if the service is scheduled at least ten (10) business days in advance, then the GFE must be provided within three business days of scheduling. For any GFE trigger, a Convening Provider (a provider who receives an initial request for a GFE or is responsible for scheduling a primary service) is required to request estimates from each Co-Provider or Co-Facility (providers or facilities other than the convening provider that furnishes items or services in conjunction with the primary service) within one business day of the trigger. The NSA includes specific requirements for the format and content of GFE notices, and a Self-pay Patient may dispute any bill that exceeds the amount listed for a single provider or facility on the GFE by more than $400.
MAINTAINING COMPLIANCE AND MONITORING UPDATES
The NSA includes many specific requirements not addressed in this overview, and regulations implementing the law are still being promulgated. As practitioners work to comply with the Act, they should work with experienced healthcare counsel to regularly reference official guidance from the Department of Health and Human Services and track developments in the regulations and legal interpretations of the Act as they arise.
Martha A. Wingate
Martha Wingate is an associate attorney at Ray Quinney and Nebeker, who works primarily out of their Provo office. She provides legal support to healthcare professionals throughout the state in forming and running their medical practices, including advice on structuring, compliance, contract negotiation, business succession planning, and acquisitions.