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No Surprises Act – Notice Requirements

On July 1, 2021, the Biden Administration passed an interim final rule: Part 1 of the “Requirements Related to Surprise Billing Act,” in an attempt to curb excessive costs patients are required to pay in relation to surprise billing. The rule is set to take affect January 1, 2022, and will only affect those who are enrolled in insurance via their employers, as federal healthcare programs already prohibit this type of billing.[1]

Overview

Surprise billing occurs when patients receive care from out-of-network providers without their knowledge. This results in higher prices for medical services that would otherwise be cheaper if rendered by providers inside their health plan’s network, resulting in the patient being responsible to cover what was not covered by their insurance. According to CMS, in 2016, 42.8% of emergency room visit bills were subject to an out-of-network bill, even though the visit was to an in-network hospital.[2] While some may believe this only occurs in emergency situations, it can also occur in non-emergency situations as well (i.e., someone involved in the patient’s care is not in-network).

In addition to cutting down these surprise costs, the rule is also focused on the following:

  1. No longer allowing surprise billing in emergencies;
  2. Banning high cost-sharing for both emergency and non-emergency services (i.e., cost-sharing cannot be higher for out-of-network services than in-network cost-sharing);
  3. Banning out-of-network charges for ancillary care;
  4. Banning out-of-network charges without notice in advance (providing patients plain-language consumer notice).[3]

Consumer Notice

Requiring out-of-network providers to provide potential patients with notice that they are outside of the patient’s health plan’s network is a large part of the No Surprises Act’s purpose. Essentially, patients can waive paying out-of-network prices for non-emergency services so long as they consent, something that is not permitted in emergency situations or for certain ancillary services (i.e., anesthesia) under the Act.[4]

First, providers and/or health facilities are expected to have a standard notice that can be given to out-of-network patients when they seek services, which must be given to patients within seventy-hours of the scheduled appointment or service (or three hours for same-day-services). These notices should include the following:

  • A statement that the provider (or facility) is out-of-network;
  • An estimate of the cost of services (which must be calculated in good faith); and
  • Information on prior authorization/utilization management limitations.[5]

This document must be given to the patient separate from any other documents given to them, and must be available in fifteen (15) of the most common languages where the provider is located (in addition to adherence to language requirements as required by state and federal law).[6]

Additionally, if the notice is given for post-stabilization services, the notice must also include a list of in-network providers that can provide the needed services, and a statement that the patient will be referred to an in-network provider at the patient’s discretion.[7]

Lastly, there is a requirement which states that out-of-network providers must notify health plans when they provide a patient services, and they must certify that they have met the required notice and consent requirements. These records must be kept for a minimum of seven years either by the provider or the health facility.[8]

The Department of Health and Human Services (“HHS”) is expected to offer additional guidance as the effective date of the Act nears, so stay tuned for more out-of-network provider requirements regarding consumer notice and consent. 

If you are uncertain whether the No Surprises Act applies to you or if you have any additional questions about standard notice forms or the No Surprises Act in general, reach out to Amanda Waesch by phone at (330) 253-9185 or by email at alwaesch@bmdllc.com.


 [1] CMS, What You Need to Know about the Biden-Harris Administration’s Actions to Prevent Surprise Billing, (July 1, 2021), https://www.cms.gov/newsroom/fact-sheets/what-you-need-know-about-biden-harris-administrations-actions-prevent-surprise-billing

[2] CMS, Requirements Related to Surprise Billing; Part I Interim Final Rule with Comment Period (July 1, 2021),  https://www.cms.gov/newsroom/fact-sheets/requirements-related-surprise-billing-part-i-interim-final-rule-comment-period

[3] CMS, HHS Announces Rule to Protect Consumers from Surprise Medical Bills, (July 1, 2021), https://www.cms.gov/newsroom/press-releases/hhs-announces-rule-protect-consumers-surprise-medical-bills

[4] AHA, Agencies Issue Part One of Regulations Banning Surprise Medical Bill (July 2, 2021), https://www.aha.org/special-bulletin/2021-07-02-agencies-issue-part-one-regulations-banning-surprise-medical-bills.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

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.