Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Federal and Ohio Laws on Surprise Billing

Client Alert

Beginning in January 2022, Ohio providers and healthcare facilities will need to comply with both the federal No Surprises Act (“NSA”) and the state surprise billing law (HB 388), which are designed to protect patients from unexpected medical bills. 

Federal Law: No Surprises Act 

Three Final Rules implement the federal No Surprises Act (NSA). These rules were published throughout 2021 and took effect on January 1, 2022. Part I of the NSA applies to emergency services (including post-emergency stabilization services) and out-of-network nonemergency services provided in, but billed separately from, a participating facility, including a hospital, ambulatory surgical center, or critical access hospital. This Part limits cost-sharing that patients are required to pay for these services, prohibits balance billing with some exceptions, and requires facilities to notify patients of their rights and protections against surprise medical bills. The NSA also applies to air ambulance transportation for both emergency and non-emergency purposes, as implemented in a separate Final Rule. 

Part II requires state licensed or certified health care providers to provide to every patient who is uninsured or self-pay (including people who are not planning on submitting a claim to their insurance for their services) a Good Faith Estimate (“GFE”) of the cost of the patient’s healthcare services. Part II also established independent dispute resolution systems (specifically, arbitration systems) for resolving provider/payor reimbursement disputes and provider/patient disputes. 

More information on the NSA can be found in BMD’s previously released client alerts regarding Part I and Part II. CMS has also developed a website for providers and patients to use for NSA information and dispute resolution. 

State Law: HB 388 – Regarding Out-of-Network Health Care 

HB 388, passed in the 133rd General Assembly, took effect on January 12, 2022. This law protects patients receiving care in Ohio from surprise bills for emergency services and out-of-network services provided at, but billed separately from, an in-network facility, as well as out-of-network ground ambulance services and clinical laboratory services provided in connection with unanticipated out-of-network care or emergency services. Under HB 388, balance billing for out-of-network services performed at an in-network facility is only allowable if: the provider informs the patient that the provider is out-of-network, the provider gives a good faith estimate of the cost of services to the patient, and the patient consents to the services. 

Ohio’s law also requires applicable health plans to reimburse providers for unanticipated and emergency out-of-network care at the greatest of the following rates, unless the provider independently negotiates a rate: 1) the median amount the health plan issuer negotiated with in-network payees for the service in question in that geographic region; 2) the rate the health plan issuer pays for out-of-network services under the health benefit plan; or 3) the rate paid by Medicare for the service in question. Ohio also created an arbitration procedure that providers can use to dispute their reimbursement with the payor. Ohio has also developed a website with information for providers and consumers. 

How do the state and federal laws work together? 

While the NSA and Ohio’s law are complimentary, they do have some differences. Generally, the NSA is enforceable against self-funded health plans subject to the Employee Retirement Income Security Act and individual plans purchased directly or through the Health Insurance Marketplace® while the Ohio law is enforceable against those health plans regulated by the Ohio Department of Insurance. CMS has stated that the NSA was meant to act as a “floor” for protections against surprise billing and will allow state law to control if that state law determines payment amounts for out-of-network providers and facilities. Ohio’s law provides additional coverage for ground ambulance services while the federal law only covers air ambulance services. Also, the dispute resolution arbitration provisions regarding the types of information an arbiter will consider and the costs for the parties are somewhat different between the two laws. 

If you have any questions about the No Surprises Act and how it applies to your practice, please contact BMD Healthcare and Hospital Law Members Ashley Watson (abwatson@bmdllc.com) or Daphne Kackloudis (dlkackloudis@bmdllc.com).

This article does not constitute legal advice.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.