Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Part II of the No Surprises Act

Client Alert

Overview

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.[1]

Federal Independent Dispute Resolution

The federal independent dispute resolution process is limited to the services under Part I of the Act for which balance billing is prohibited.

The purpose of the dispute resolution process is for out-of-network providers and facilities to determine the out-of-network rate after a conclusion is not made after a 30-day “open negotiation.” This open negotiation period must be initiated first, and only when it fails can the federal independent dispute resolution process then begin, by first being initiated by either party. The required administrative fee for 2022 is $50 per party.

Both parties then must decide on a “certified independent dispute resolution entity,” which must then certify it has no conflicts of interest with either party. If one of these steps cannot be met, the Department of Health and Human Services will select an entity for the parties. The entity must choose between one of the parties’ offers for an out-of-network amount, which will be binding. The losing party will then be liable for the entity’s fee.

Good Faith Estimates

Good faith estimates must be given to uninsured patients for expected charges, including if the services can be provided by other providers or facilities. HHS uses the example of surgery, and states that the good faith estimate would include the cost of the surgery itself, as well as anesthesia, labs, tests, etc. However, it will not include services that would be scheduled separately even though they may be related, such as a physical therapy or a pre-surgery appointment.

Patient-Provider Dispute Resolution

In addition to the federal independent dispute resolution process, a patient-provider resolution has been added in order to resolve instances where a patient received a good faith estimate and then is billed “substantially in excess,” which has been defined as $400 or more. Essentially, this type of dispute resolution requires the patient to have: (1) received a good faith estimate; (2) the patient initiated the process within 120 days of receiving the bill; and (3) the bill the patient received was $400 or more than the good faith estimate. The fee for this process will be $25, to keep the process accessible to consumers.

External Review

Building on an already established rule – in the case of adverse benefit determinations, the scope of external reviews will also apply to determinations involving compliance with the new surprise billing and cost-sharing provisions under the No Surprises Act. Additionally, otherwise-grandfathered plans will also be subject to these provisions.  

Conclusion

Part II of the No Surprises Act introduced a lot of information for providers and facilities to unpack! If you have any additional questions about a specific topic, or Part II of the Act in general, reach out to Healthcare and Hospital Law Member Amanda Waesch by phone at (330) 253-9185 or by email at alwaesch@bmdllc.com. Additionally, the interim final rule can be found here. Click here for information on Part 1 of the Act, Notice Requirements.

[1] Centers for Medicare and Medicaid Services, Requirements Related to Surprise Billing; Part II Interim Final Rule with Comment Period, (Sep. 30, 2021) https://www.cms.gov/newsroom/fact-sheets/requirements-related-surprise-billing-part-ii-interim-final-rule-comment-period.


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.