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Federal and Ohio Laws on Surprise Billing

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.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.