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

Client Alert

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.


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.