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Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

The Interim Final Rule (IFR), Requirements Related to Surprise Billing: Part I

Medicare and Medicaid already prohibit surprise billing/balance billing, and the IFR extends this protection to patients insured through employer-based and individual health plans.

What are Surprise Medical Bills (Balance Bills)?

Patients receive surprise medical bills, or balance bills, when they receive health care from providers who are not covered under the network of their insurance plans. Out-of-network providers usually charge insurers a higher rate than in-network providers. When insurers refuse to pay the bills charged by out-of-network providers, the providers may bill the patient for the balance for services not covered by the insurer. Surprise medical bills can arise from both emergency and non-emergency situations.

Provisions of the IFR protect patients from surprise billing for:

  • Emergency services
  • Out-of-network air ambulance services
  • Non-emergency services rendered by out-of-network providers at facilities that are in the patient’s network in certain circumstances

The IFR prohibits surprise billing for most emergency services, including out-of-network air ambulance services. This means that out-of-network emergency services must be billed at the same rate as in-network services without prior authorization. Surprise billing is also prohibited for patients who receive non-emergency services from out-of-network providers at facilities that are in the patient’s network (also known as ancillary care).  

Additionally, the IFR bans excessive out-of-network cost-sharing for both emergency and non-emergency care. Patients who receive non-emergency services (that are subject to protections from the NSA) from out-of-network providers are only responsible for the cost they would have incurred if the provider were in-network.

Who is affected by the NSA/IFR?

These regulations apply to group health plans and health insurers of group or individual health coverage for plans/policies beginning on or after January 1, 2022. The NSA does not require all insurers to provide coverage for the types of care under the NSA. But if the insurer’s plan covers emergency care, then they are subject to the requirements of the NSA.

The NSA also applies to physicians, health care providers, health care facilities, and air ambulance services effective January 1, 2022.

Implications for Providers

Healthcare providers and facilities are generally prohibited from sending patients balance bills, but the NSA does not prohibit all balance bills. Balance bills are permitted if the patient consents to out-of-network providers. Additionally, the NSA only applies to certain types of health care services. Providers and facilities can still send balance bills if they provide non-emergency services, as defined by the NSA. However, HHS warns against sending balance bills to patients until providers have determined whether the services delivered are subject to the NSA.

A provider that sends a patient a balance bill in violation of the NSA could face up to $10,000 per violation in civil monetary penalties.

Notice and Consent Exception

A patient may voluntarily consent to out-of-network providers, thus agreeing to a balance bill, but the ability of a provider to seek a consent waiver from a patient is limited. Providers can only ask a patient to sign a consent waiver for nonemergency services. Even for non-emergency services, providers are prohibited from asking for a consent waiver if (1) the facility does not have an in-network provider; (2) the care needed is unforeseen and urgent; (3) the provider delivers ancillary services not typically selected by the patient.

When obtaining patient consent in these limited circumstances, providers and facilities are required to use the standard HHS written notice and consent forms. This form must be separated from all other documents and given to the patient and signed 72 hours before an appointment, and the provider must retain a copy of the form for no less than seven years.

The provisions of the IFR for surprise billing are complex, and providers must take precautions to ensure that they comply with all regulations.

If you have any questions, please contact BMD Healthcare and Hospital Law Member Amanda Waesch at alwaesch@bmdllc.com or 330-253-9185.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.