No Surprises Act Compliance

Originally posted by the National Alliance of Medical Auditing Specialists (NAMAS), February 25, 2022.

The Department of Health and Human Services published three parts to the No Surprises Act towards the end of 2021, which took effect January 1, 2022. The Act is intended to protect consumers from “balance billing,” which occurs when a patient receives a bill with a higher price than they may have anticipated because they did not have knowledge that the provider or facility was out-of-network. The purpose of this article is to note certain requirements that compliance employees will need to be aware of at their facilities, including notice and consent, good faith estimates, and public disclosures.

Currently, the No Surprises Act applies generally to group health plans and insurance issuers offering group or individual coverage for: (1) emergency services; (2) health care facilities providing out-of-network services, and (3) providers of air ambulance services.[1] HHS limits the definition of health care facility to hospitals, hospital outpatient departments, critical access hospitals, or ambulatory surgical centers.[2]

Notice and Consent

First and foremost, facilities should implement a policy that ensures patient insurance information is taken whenever they seek care from the facility. In instances of non-emergency services being out-of-network, patients may waive the Act’s protections if providers obtain proper consent to balance bill. This notice must be in writing (paper or electronic); state that the provider is a nonparticipating provider; include the good faith estimate amount; provide a statement that prior authorization may be required in advance of receiving services; and clearly state that consent is optional and that they alternatively may seek care from a participating provider.[3] Notice also must be available in 15 of the most common languages in the State where the facility is located, or if the patient’s language is outside of those 15, an interpreter must be provided.[4]

Additionally, notice should be given no less than 72 hours before the patient is scheduled to receive services if the appointment was scheduled at least 72 hours in advance. If the appointment was scheduled less than 72 hours in advance or is a same-day appointment, notice should be given at least 3 hours before the patient is scheduled to receive services. CMS has provided a standard Notice and Consent Form which can be accessed here.

Nonparticipating emergency facilities may also obtain consent for patients to waive balance billing under the same guidelines if it is determined that the services are not considered emergency services.[5] However, if a provider is out-of-network but the emergency facility is not, participating providers able to provide the services at the facility must also be listed in the notice.[6]

Lastly, notice and consent is not valid when the patient is receiving unforeseen, urgent medical care that arises at the time the service is furnished, or for ancillary services.[7]

Good Faith Estimates

As a part of the notice requirements aforementioned, the facility should provide a good faith estimate of how much the care will cost for all reasonably expected items and services. However, good faith estimates also should be provided to patients seeking care who are uninsured or are opting to self-pay.[8]

Multiple providers may provide a single notice to patients, so long as the following are met: (1) each provider’s name is specifically listed on the notice document; (2) each provider includes in the notice a good faith estimate for the items and services they are furnishing, and the notice specifies which provider is providing which items and services within the good faith estimate; and (3) the individual has the option to consent to waive balance billing protections with respect to each provider separately.[9] CMS has provided a model Good Faith Estimate Form for facilities and providers to use.

Public Disclosure

Lastly, providers and facilities, including emergency departments and freestanding emergency departments, are required to publicly disclose patient protections against balance billing.[10] This includes the provider or facility posting information on their website (if they have one), and providing a one-page notice. Information in the notice should be in plain language and include the federal restrictions on providers and facilities regarding the Act, any applicable state law protections against balance billing, and contact information for federal and state agencies so that patients are able to report any violations.[11]

All of the forms that CMS has provided to assist in complying with the No Surprises Act can be downloaded from their website here.

Bryan Meek is a Partner at Brennan, Manna & Diamond, LLC, in its healthcare and employment law divisions. If you have any additional questions about compliance with the No Surprises Act, please contact Bryan at bmeek@bmdllc.com. Thank you to Rachel Stermer for her assistance with drafting this publication.

[1] Federal Register, Requirements Related to Surprise Billing; Part I (Sept. 13, 2021) https://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billing-part-i.

[2] Id.

[3] 45 CFR § 149.420.

[4] Id.

[5] 45 CFR § 149.410.

[6] Id.

[7] 45 CFR § 149.420.

[8] 45 CFR § 149.610.

[9] Requirements Related to Surprise Billing; Part I (Sept. 13, 2021) https://www.federalregister.gov/d/2021-14379/p-333.

[10] 45 CFR § 149.430.

[11] Id.