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No Surprises Act and You (Published in the SCMS Winter 2022 Newsletter)

Originally posted in the Stark County Medical Society Winter 2022 Newsletter.

Legislation has been adopted by the United States Congress and the Ohio Legislature known as the “No Surprises Act” which attempts to regulate billing by professionals and facilities to patients who are not in networks with those facilities or providers at those facilities. The federal bill was triggered by some sensational news stories of patients being billed for tens of thousands of dollars for emergency care when the hospital was out of the network under the patient’s insurance plans.

The federal legislation covers all billing for both emergency and nonemergency services at a participating facility which includes a hospital, ambulatory surgical center or critical access hospital. The rules also apply to other unique services such as air ambulance transportation services. The final rules expand the rule to also cover office-based health care providers.

These rules were originally being drafted to cover emergency services in the hospital setting (for example, the pathology group might not be in-network for all plans that the hospital takes). The final rules however indicated that the final rules do in fact apply to office-based practices, including both emergency and non-emergency care.

The federal rules apply if a patient is not insured by a plan accepted by provider, or is a self-pay patient. Self-pay patients include patients who are in fact covered by insurance, but the patient has advised the healthcare provider they do not plan on submitting the claim for coverage under their insurance plan.

For an applicable patient, the physician is required to give the patient a “Good Faith Estimate” (“GFE”) of anticipated cost of the patient’s healthcare service in advance. CMS has created a sample GFE template which requires: (a) patient name and DOB, (b) description of primary services, (c) itemized list of services “reasonably expected” to be furnished, (d) applicable diagnosis codes and expected charges, (e) your NPI, (f) services that may require separate scheduling, (g) disclaimer that this is only an estimate, and (h) patient may use the dispute resolution process. Any actual bill which is $400 over the estimate triggers a patient option to dispute the charges. You may elect to post prices and costs on your website as well. If the service date is ten days out, the GFE must be given three days in advance. If the service date is less than three days in advance, the GFE must be given the day before. Days are counted as business days, not calendar days. The GFE can be for a specific service or a course of treatment, such as $X for 12 sessions. If unexpected matters arise at the visit such as a potential vaccination shot that had not been expected, you are not required to stop the visit and provide a new GFE.

If you fail to provide the GFE, the patient can elect to use the dispute resolution process which is being developed by HHS. No details are finalized other than they have announced there will be an administration fee charged. Penalties for noncompliance have not yet been announced.

In addition to the federal rule, Ohio has also adopted a similar statute that went into effect January 12, 2022 dealing with out-of-network costs.

While there is some question how the federal act will be enforced in a private-practice office setting. In the event you routinely charge out-of-network patients higher rates than that which you may charge for in-network or government patients, you will need to provide certain notice forms to patients so they would be given notice that the rates would be higher than the rate paid by an insurance company or for a self-pay patient, what the costs will be. This is similar in concept to the Advance Beneficiary Notice required for patients covered by Medicare for services which are outside of Medicare coverage. Absent these documents in advance and if the statutes were to apply, you may end up dealing with the federal dispute resolution system and potential penalties per violation. We encourage you to update your office procedures and compliance plans to meet these new rules.

If you have any questions or would like to talk with us concerning updating your office compliance plans in this matter, please contact Scott Sandrock at 330-253-4367, spsandrock@bmdllc.com.

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.